exhibit a · 2011-05-06 · 1 clean copy – final proposed tcjc exhibit a tba proposal for...
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Clean Copy – Final Proposed TCJC 1
EXHIBIT A
TBA Proposal for Amendment to the TN. Sup. Ct. R. 10, Tennessee Code of Judicial
Conduct ("Amended Code")
(Clean version)
PROPOSED NEW
TENNESSEE CODE OF JUDICIAL CONDUCT
PREAMBLE
[1] An independent, fair and impartial judiciary is indispensable to our system of
justice. The United States legal system is based upon the principle that an independent,
impartial, and competent judiciary, composed of men and women of integrity, will
interpret and apply the law that governs our society. Thus, the judiciary plays a central
role in preserving the principles of justice and the rule of law. Inherent in all the Rules
contained in this Code are the precepts that judges, individually and collectively, must
respect and honor the judicial office as a public trust and strive to maintain and enhance
confidence in the legal system.
[2] Judges should maintain the dignity of judicial office at all times, and avoid both
impropriety and the appearance of impropriety in their professional and personal lives.
They should aspire at all times to conduct that ensures the greatest possible public
confidence in their independence, impartiality, integrity, and competence.
[3] The Code of Judicial Conduct establishes standards for the ethical conduct of
judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of
judges and judicial candidates, who are governed in their judicial and personal conduct by
general ethical standards as well as by the Code. The Code is intended, however, to
provide guidance and assist judges in maintaining the highest standards of judicial and
personal conduct, and to provide a basis for regulating their conduct through disciplinary
agencies.
Comparison to ABA Model Code
The Preamble is adopted from the 2007 ABA Model Code with only one change, the
deletion of the word “Model” in Paragraph [3].
Comparison to Current Tennessee Code
The Preamble is now limited to describing the general purpose and rationale of the Code.
The Scope section explains the structure of the Code and how the Rules are intended to operate.
Paragraph [2] is new.
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SCOPE
[1] The Code of Judicial Conduct consists of four Canons, numbered Rules under each
Canon, and Comments that generally follow and explain each Rule. Scope and
Terminology sections provide additional guidance in interpreting and applying the Code.
An Application section establishes when the various Rules apply to a judge or judicial
candidate.
[2] The Canons state overarching principles of judicial ethics that all judges must
observe. Although a judge may be disciplined only for violating a Rule, the Canons
provide important guidance in interpreting the Rules. Where a Rule contains a permissive
term, such as “may” or “should,” the conduct being addressed is committed to the personal
and professional discretion of the judge or candidate in question, and no disciplinary action
should be taken for action or inaction within the bounds of such discretion.
[3] The Comments that accompany the Rules serve two functions. First, they provide
guidance regarding the purpose, meaning, and proper application of the Rules. They
contain explanatory material and, in some instances, provide examples of permitted or
prohibited conduct. Comments neither add to nor subtract from the binding obligations
set forth in the Rules. Therefore, when a Comment contains the term “must,” it does not
mean that the Comment itself is binding or enforceable; it signifies that the Rule in
question, properly understood, is obligatory as to the conduct at issue.
[4] Second, the Comments identify aspirational goals for judges. To implement fully
the principles of this Code as articulated in the Canons, judges should strive to exceed the
standards of conduct established by the Rules, holding themselves to the highest ethical
standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of
the judicial office.
[5] The Rules of the Code of Judicial Conduct are rules of reason that should be applied
consistent with constitutional requirements, statutes, other court rules, and decisional law,
and with due regard for all relevant circumstances. The Rules should not be interpreted to
impinge upon the essential independence of judges in making judicial decisions.
[6] Although the black letter of the Rules is binding and enforceable, it is not
contemplated that every transgression will result in the imposition of discipline. Whether
discipline should be imposed should be determined through a reasonable and reasoned
application of the Rules, and should depend upon factors such as the seriousness of the
transgression, the facts and circumstances that existed at the time of the transgression, the
extent of any pattern of improper activity, whether there have been previous violations,
and the effect of the improper activity upon the judicial system or others.
[7] The Code is not designed or intended as a basis for civil or criminal liability.
Neither is it intended to be the basis for litigants to seek collateral remedies against each
other or to obtain tactical advantages in proceedings before a court.
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Comparison to ABA Model Code
The Scope is adopted from the 2007 ABA Model Code without modification, except for
the deletion of the word “Model” in Paragraphs [1] and [5].
Comparison to Current Tennessee Code
The Scope is a new section added to the Code that contains the provisions from the
Preamble that explain the structure of the Code and how the various parts of the Code are
intended to operate. The Scope explains that judges may be disciplined only for violating a Rule.
The Canons are overarching principles that provide important guidelines.
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TERMINOLOGY
“Aggregate,” in relation to contributions for a candidate, means not only contributions in
cash or in kind made directly to a candidate’s campaign committee, but also all
contributions made indirectly with the understanding that they will be used to support the
election of a candidate or to oppose the election of the candidate’s opponent. See Rules 2.11
and 4.4.
“Appropriate authority” means the authority having responsibility for initiation of
disciplinary process in connection with the violation to be reported. See Rules 2.14 and
2.15.
“Contribution” means both financial and in-kind contributions, such as goods, professional
services, advertising, and other types of assistance, which, if obtained by the recipient
otherwise, would require a financial expenditure. “Contribution” includes but is not
limited to a contribution as defined by Tennessee Code Annotated section 2-10-102(4). See
Rules 2.11, 2.13, 3.7, 4.1, and 4.4.
“De minimis,” in the context of interests pertaining to disqualification of a judge, means an
insignificant interest that could not raise a reasonable question regarding the judge’s
impartiality. See Rule 2.11.
"Domestic partner" means a person with whom another person maintains a household and
an intimate relationship, other than a person to whom he or she is legally married. See
Rules 2.11, 2.13. 3.13. and 3.14.
“Economic interest” means ownership of more than a de minimis legal or equitable
interest. Except for situations in which the judge participates in the management of such a
legal or equitable interest, or the interest could be substantially affected by the outcome of
a proceeding before a judge, it does not include:
an interest in the individual holdings within a mutual or common investment fund;
an interest in securities held by an educational, religious, charitable, fraternal, or
civic organization in which the judge or the judge’s spouse, domestic partner,
parent, or child serves as a director, an officer, an advisor, or other participant;
a deposit in a financial institution or deposits or proprietary interests the judge may
maintain as a member of a mutual savings association or credit union, or similar
proprietary interests; or
an interest in the issuer of government securities held by the judge.
See Rules 1.3 and 2.11.
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“Fiduciary” includes relationships such as executor, administrator, trustee, or guardian.
See Rules 2.11, 3.2, and 3.8.
“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor
of, or against, particular parties or classes of parties, as well as maintenance of an open
mind in considering issues that may come before a judge. See Canons 1, 2, and 4, and
Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and 4.2.
“Impending matter” is a matter that is imminent or expected to occur in the near future.
See Rules 2.9, 2.10, 3.13, and 4.1.
“Impropriety” includes conduct that violates the law, court rules, or provisions of this
Code, and conduct that undermines a judge’s independence, integrity, or impartiality. See
Canon 1 and Rule 1.2.
“Independence” means a judge’s freedom from influence or controls other than those
established by law. See Canons 1 and 4 and Rules 1.2, 3.1, 3.12, 3.13, and 4.2.
“Integrity” means probity, fairness, honesty, uprightness, and soundness of character. See
Canon 1 and Rule 1.2.
“Judicial candidate” means any person, including a sitting judge, who is seeking selection
for or retention in judicial office by election or appointment. A person becomes a candidate
for judicial office as soon as he or she makes a public announcement of candidacy, declares
or files as a candidate with the election or appointment authority, authorizes or, where
permitted, engages in solicitation or acceptance of contributions or support, or is
nominated for election or appointment to office. “Judicial candidate” includes but is not
limited to a “candidate” as defined by Tennessee Code Annotated section 2-10-102(3). See
Rules 2.11, 4.1, 4.2, and 4.4.
"Judicial Settlement Conference" means a mediation conducted by a judicial officer as
defined in Tenn. Sup. Ct. Rule 31.
“Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances. See Rules 2.11, 2.13,
2.15, 2.16, 3.6, and 4.1.
“Law” encompasses court rules as well as statutes, constitutional provisions, rules and
regulations, and decisional law. See Rules 1.1, 2.1, 2.2, 2.6, 2.7, 2.9, 3.1, 3.4, 3.9, 3.12, 3.13,
3.14, 3.15, 4.1, 4.2, 4.4, and 4.5.
“Member of the candidate’s family” means a spouse, domestic partner, child, grandchild,
parent, grandparent, or other relative or person with whom the candidate maintains a
close familial relationship.
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“Member of the judge’s family” means a spouse, domestic partner, child, grandchild,
parent, grandparent, or other relative or person with whom the judge maintains a close
familial relationship. See Rules 3.7, 3.8, 3.10, and 3.11.
“Member of a judge’s family residing in the judge’s household” means any relative of a
judge by blood, adoption or marriage, or a person treated by a judge as a member of the
judge’s family, who resides in the judge’s household. See Rules 2.11 and 3.13.
“Nonpublic information” means information that is not available to the public. Nonpublic
information may include, but is not limited to, information that is sealed by statute or court
order or impounded or communicated in camera, and information offered in grand jury
proceedings, dependency and neglect cases, or psychiatric reports. See Rule 3.5.
“Pending matter” is a matter that has commenced. A matter continues to be pending
through any appellate process until final disposition. See Rules 2.9, 2.10, 3.13, and 4.1.
“Personally solicit” means a direct request made by a judge or a judicial candidate for
financial support or in-kind services, whether made in person or by letter, telephone, or
any other means of communication, including electronic communication. See Rule 4.1.
“Political organization” means a political party or other group sponsored by or affiliated
with a political party or candidate, the principal purpose of which is to further the election
or appointment of candidates for political office. “Political organization” includes but is
not limited to an affiliated political campaign committee as defined by Tennessee Code
Annotated section 2-10-102(1), a multi-candidate political campaign committee as defined
in Tennessee Code Annotated section 2-10-102(9) and a political campaign committee as
defined in Tennessee Code Annotated section 2-10-102(12). For purposes of this Code, the
term does not include a judicial candidate’s campaign committee created as authorized by
Rule 4.4. See Rules 4.1 and 4.2.
“Public election” includes primary and general elections, partisan elections, nonpartisan
elections, and retention elections. See Rules 4.2 and 4.4.
“Third degree of relationship” includes the following persons: great-grandparent,
grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild,
nephew, and niece. See Rule 2.11.
Comparison to ABA Model Code
The Terminology section is adopted from the 2007 ABA Model Code with the following
changes:
The first paragraph explaining the use of asterisks (*) is not adopted and all asterisks are
deleted.
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The definition of “Judicial candidate” is expanded to include, but is not limited to, a
“candidate” as defined by Tennessee Code Annotated section 2-10-102(3).
"Judicial Settlement Conference" is a new defined term.
“Law” includes rules and regulations.
“Member of a family” includes relatives by adoption.
From the definition of “Nonpublic information,” “presentencing reports” has been
deleted, but “dependency” has been replaced by “dependency and neglect.”
“Personally solicit” has been modified to include in person and electronic
communications.
“Political organization” has been cross-referenced to included Tennessee statutes.
Comparison to Current Tennessee Code
Definitions of the following terms are added to the Terminology section: Aggregate; Domestic
Partner; Impartial, impartiality and impartially; Impending matter; Impropriety; Independence;
Integrity; Judicial Candidate; Judicial Settlement Conference; Pending Matter; Personally solicit;
Political Organization; and Public Election.
“Candidate” is now included in “Judicial Candidate.” “Court personnel” and “Election”
have been deleted, as has “Require.” “Economic interest” has been modified.
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APPLICATION
The Application section establishes when the various Rules apply to a judge or judicial
candidate.
I. APPLICABILITY OF THIS CODE
(A) The provisions of the Code apply to all full-time judges. Parts III through V of this
section identify provisions that apply to the three categories of part-time judges only while
they are serving as judges, and provisions that do not apply to part-time judges at any
time. Rules that do not appear in Sections III through V are therefore applicable to part-
time judges at all times. The three categories of judicial service in other than a full-time
capacity are necessarily defined in general terms because of the widely varying forms of
judicial service. Canon 4 applies to judicial candidates.
(B) A judge, within the meaning of this Code, is anyone who is authorized to perform
judicial functions, including but not limited to an officer such as a magistrate, referee,
court commissioner, judicial commissioner, special master, or an administrative judge or
hearing officer.
COMMENT
[1] The Rules in this Code have been formulated to address the ethical obligations of any
person who serves a judicial function, and are premised upon the supposition that a uniform
system of ethical principles should apply to all those authorized to perform judicial functions.
[2] The determination of which category and, accordingly, which specific Rules apply to an
individual judicial officer, depends upon the facts of the particular judicial service.
[3] Some states, including Tennessee, have created courts in which judges are authorized by
court rules to act in nontraditional ways. For example, judges presiding in drug courts and
monitoring the progress of participants in those courts‟ programs may be authorized and even
encouraged to communicate directly with social workers, probation officers and others outside
the context of their usual judicial role as independent decision makers on issues of fact and law.
Judges serving on such courts shall comply with this Code except to the extent laws or court
rules provide and permit otherwise. See Rule 2.9 Comment [4].
[4] The Secretary of State, in accordance with Tennessee Code Annotated section 4-5-
321(b), adopted a code of conduct for all administrative judges and hearing officers:
Tenn. Rules and Regs. Ch. 1360-4-1-.20. Code of Judicial Conduct
Unless otherwise provided by law or clearly inapplicable in context, the Tennessee Code
of Judicial Conduct, Rule 10, Canons 1 through 4, of the Rules of the Tennessee Supreme
Court, and any subsequent amendments thereto, shall apply to all administrative judges
and hearing officers of the State of Tennessee. However, any complaints regarding any
individual administrative judge‟s or hearing officer‟s conduct under the code shall be
made to the chief administrative judge or hearing officer or other comparable entity with
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supervisory authority over the administrative judge or hearing officer, and any complaints
about the chief administrative judge or hearing officer shall be made to the appointing
authority.
The provisions of Tennessee law dealing with the Court of the Judiciary are not applicable to
administrative judges and hearing officers of the State of Tennessee.
See Tenn. Code Ann. Title 17, Chapter 5.
[5] This provision does not apply to special commissioners performing nonjudicial functions.
II. SENIOR JUDGE
A judge designated as a senior judge or justice, who by law is not permitted to practice law,
is required to comply with the provision of this Code to the same extent as a full time judge.
COMMENT
[1] For the purposes of this section, a senior judge is considered to “perform judicial
functions.” Tennessee Code Annotated section 17-2-302 specifically prohibits senior judges
from practicing law and further requires their compliance with this Code.
III. CONTINUING PART-TIME JUDGE
A judge who serves repeatedly on a part-time basis by election or under a continuing
appointment is a “continuing part-time judge.” These include, but are not limited to, part-
time judges, referees, and judicial commissioners in the general sessions, juvenile,
municipal and other courts. A continuing part-time judge:
(A) is not required to comply at any time with Rules 3.4 (Appointments to
Governmental Positions), 3.8 (A) (Appointments to Fiduciary Positions), 3.9 (Service as
Arbitrator or Mediator), 3.10 (Practice of Law), and 3.11(B) (Financial, Business, or
Remunerative Activities), and
(B) shall not practice law in the court on which the judge serves or in any court subject
to the appellate jurisdiction of the court on which the judge serves, and shall not act as a
lawyer in a proceeding in which the judge has served as a judge or in any other proceeding
related thereto.
COMMENT
[1] When a person who has been a continuing part-time judge is no longer a continuing part-
time judge, that person may act as a lawyer in a proceeding in which he or she has served as a
judge or in any other proceeding related thereto only with the informed consent of all parties, and
only to the extent authorized by the Rules of Professional Conduct.
[2] Although a continuing part-time judge is precluded from practicing law in any court
subject to the appellate jurisdiction of the court on which the judge serves, this rule does not
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prevent the judge from practicing in a court to which an appeal lies from the judge‟s court. For
example, a part-time general sessions court judge may practice in circuit court so long as the
proceeding is not one in which the judge served as a judge or a proceeding related thereto.
IV. [INTENTIONALLY OMITTED]
V. PRO TEMPORE PART-TIME JUDGE
A pro tempore part-time judge who serves or expects to serve once or only sporadically on
a part-time basis under a separate appointment for each period of service or for each case
heard is not required to comply:
(A) except while serving as a judge, with Rules 2.4 (External Influences on Judicial
Conduct), 3.2 (Appearances before Governmental Bodies and Consultation with
Government Officials); and 4.1 (Political and Campaign Activities of Judges and Judicial
Candidates in General) (A)(1) through (7); or
(B) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.8 (A)
(Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10
(Practice of Law), and 3.11 (B) (Financial, Business, or Remunerative Activities).
VI. TIME FOR COMPLIANCE
A person to whom this Code becomes applicable shall comply immediately with its
provisions, except that those judges to whom Rules 3.8 (Appointments to Fiduciary
Positions) and 3.11 (Financial, Business, or Remunerative Activities) apply shall comply
with those Rules as soon as reasonably possible, but in no event later than one year after
the Code becomes applicable to the judge. To the extent such activities are related to the
judge’s law practice, the 180 day requirement related to the winding up of a law practice
applies. See Rule 3.10 and Comment [2] thereto.
COMMENT
[1] If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the
prohibitions in Rule 3.8, continue to serve as fiduciary, but only for that period of time necessary
to avoid serious adverse consequences to the beneficiaries of the fiduciary relationship and in no
event longer than one year. Similarly, if engaged at the time of judicial selection in a business
activity, a new judge may, notwithstanding the prohibitions in Rule 3.11, continue in that activity
for a reasonable period but in no event longer than one year. To the extent such activities are
related to the judge‟s law practice, the 180 day requirement related to the winding up of a law
practice applies. See Rule 3.10 and Comment [2] thereto.
Comparison to ABA Model Code
Application I is similar to the 2007 ABA Model Code, but has been tailored to Tennessee
law and recognizes the types of judicial officers that exist in this state. Part IV is deleted,
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reducing the number of categories of judges from four to three because Tennessee does not have
“periodic part-time judges.” Part II is modified to reflect Tennessee‟s “senior judges,” instead of
“retired judges subject to recall.” Because senior judges are prohibited by statute from practicing
law, Part II is substantially rewritten.
In Part III, the reference to “retired judges subject to recall” is deleted, but examples are
given of categories of continuing part time judges. The exemption from compliance with Rules
3.14 and 3.14 and all Rules under Canon 4 is deleted. Part III, Comment [2] is new. In Part V, a
significant reduction is made in the number of Rules a pro tempore part time judge is exempt
from following. The following Rules were deleted from the exemption: Rule 1.2, Rule 2.10,
Rule 3.6, Rule 3.7, Rule 3.13, Rule 3.15, and all Rules in Canon 4. In Part VI and its Comment,
Tennessee‟s 180 day rule in which a new judge must wind up a practice is referenced.
Comparison to Current Tennessee Code
The Application section has been restructured. Part I explains the structure. Comment
[3] thereto addresses and describes certain nontraditional courts, sometimes referred to as
“problem solving courts”, and cross-references Rule 2.9 Comment [4]. Comment [4] cites the
statute and regulation regarding administrative law judges and specifically states that the
provisions of law dealing with the Court of the Judiciary are inapplicable. Comment [5] exempts
special commissioners performing nonjudicial functions.
Part II imposes the same obligations on a senior judge as are imposed on a full-time
judge. This is a change of current Tennessee Code, but is consistent with Tennessee Code
Annotated section 17-2-302, which prohibits senior judges from practicing law. In Part III, rules
involving compensation and reimbursement and provisions regarding a candidate seeking
appointment are no longer inapplicable to continuing part-time judges.
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CANON 1
A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY,
AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY
AND THE APPEARANCE OF IMPROPRIETY.
Comparison to ABA Model Code
Canon 1 is adopted from the 2007 ABA Model Code without modification.
Comparison to Current Tennessee Code
Canon 1 combines most of the subject matter of current Canons 1 and 2 into a single
Canon. It addresses both the obligation of judges to uphold the independence, integrity, and
impartiality of the judiciary found in Tennessee Canon 1 and the obligation to avoid impropriety
and the appearance thereof found in Tennessee Canon 2. Canon 1 is slightly expanded by the
requirement that a judge not only uphold, but also promote, the independence, integrity, and
impartiality of the judiciary. The word “impartiality” is added to independence and integrity in
proposed Canon 1 and throughout the Rules to underscore its importance as a fundamental value.
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RULE 1.1 Compliance with the Law
A judge shall comply with the law, including the Code of Judicial Conduct.
Comparison to ABA Model Code
Rule 1.1 is adopted from the 2007 ABA Model Code without modification.
Comparison to Current Tennessee Code
Rule 1.1 is derived from Canon 2A and the Commentary to Canon 1A. Reference to a
judge‟s duty to „respect‟ the law has been deleted.
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RULE 1.2 Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and
the appearance of impropriety.
COMMENT
[1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates
the appearance of impropriety. This principle applies to both the professional and personal
conduct of a judge.
[2] A judge should expect to be the subject of public scrutiny that might be viewed as
burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.
[3] Conduct that compromises or appears to compromise the independence, integrity, and
impartiality of a judge undermines public confidence in the judiciary. Because it is not
practicable to list all such conduct, the Rule is necessarily cast in general terms.
[4] Judges should participate in activities that promote ethical conduct among judges and
lawyers, support professionalism within the judiciary and the legal profession, and promote
access to justice for all.
[5] Actual improprieties include violations of law, court rules or provisions of this Code.
The test for appearance of impropriety is whether the conduct would create in reasonable minds
a perception that the judge violated this Code or engaged in other conduct that reflects adversely
on the judge‟s honesty, impartiality, temperament, or fitness to serve as a judge.
[6] A judge should initiate and participate in community outreach activities for the purpose
of promoting public understanding of and confidence in the administration of justice. In
conducting such activities, the judge must act in a manner consistent with this Code.
Comparison to ABA Model Code
Rule 1.2 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Rule 1.2 is derived from Canon 2A. Comments [1], [2], [3], and [5] are taken from the
Commentary to 2A. Comment [4], regarding promoting professionalism, and Comment [6],
which encourages participation in community outreach to promote public understanding of the
administration of justice, are new.
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RULE 1.3 Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal or economic
interests of the judge or others, or allow others to do so.
COMMENT
[1] It is improper for a judge to use or attempt to use his or her position to gain personal
advantage or deferential treatment of any kind. For example, it would be improper for a judge to
allude to his or her judicial status to gain favorable treatment in encounters with traffic officials.
Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her
personal business.
[2] A judge may provide a reference or recommendation for an individual based upon the
judge‟s personal knowledge. The judge may use official letterhead if the judge indicates that the
reference is personal and if there is no likelihood that the use of the letterhead would reasonably
be perceived as an attempt to exert pressure by reason of the judicial office. A judge may use
official letterhead if the judge‟s professional knowledge is germane to the purpose of the letter,
such as writing a letter of recommendation for a former or current law clerk or a letter of
recommendation for admission to law school.
[3] Judges may participate in the process of judicial selection by cooperating with appointing
authorities and screening committees, and by responding to inquiries from such entities
concerning the professional qualifications of a person being considered for judicial office.
[4] Special considerations arise when judges write or contribute to publications of for-profit
entities, whether related or unrelated to the law. A judge should not permit anyone associated
with the publication of such materials to exploit the judge‟s office in a manner that violates this
Rule or other applicable law. In contracts for publication of a judge‟s writing, the judge should
retain sufficient control over the advertising to avoid such exploitation.
Comparison to ABA Model Code
Rule 1.3 and Comments [1], [3], and [4] are adopted from the 2007 ABA Model Code
without modification. A sentence added to Comment [2] clarifies that judicial letterhead should
be used to provide a reference or recommendation only if the judge‟s professional knowledge is
germane to the purpose of the letter.
Comparison to Current Tennessee Code
Rule 1.3 is derived from Canon 2B and its Commentary. The limitations in the rule now
prohibit a judge from using the prestige of judicial office to advance economic, as well as
personal, interests. Comment [2] makes clear that, while a judge may, based on personal
knowledge, serve as a reference or write a letter of recommendation, judicial letterhead may be
used only if the judge‟s professional knowledge is germane to the purpose of the letter.
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CANON 2
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY.
Comparison to ABA Model Code
Canon 2 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Canon 2 is derived from Tennessee Canon 3, but includes the requirement that the judge
perform the duties of office competently, as well as impartially and diligently. The title of the
existing canon does not include the word “competently,” but Canon 3B(2) requires judges to be
faithful to the law and maintain professional competence in it.
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RULE 2.1 Giving Precedence to the Duties of Judicial Office
The duties of judicial office, as prescribed by law, shall take precedence over all of a
judge’s personal and extrajudicial activities.
COMMENT
[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct
their personal and extrajudicial activities to minimize the risk of conflicts that would result in
frequent disqualification. See Canon 3.
[2] Although it is not a duty of judicial office unless prescribed by law, judges are
encouraged to participate in activities that promote public understanding of and confidence in the
justice system.
Comparison to ABA Model Code
Rule 2.1 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Rule 2.1 is Canon 3A with slight modifications. Because a judge‟s role includes
administrative, as well as judicial duties, the rule applies to “duties of judicial office” instead of
“judicial duties.” The word “shall” is inserted to emphasize that the Code imposes an ethical
duty to give priority to the duties of judicial office. The Comments are new.
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RULE 2.2 Impartiality and Fairness
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly
and impartially.
COMMENT
[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-
minded.
[2] Although each judge comes to the bench with a unique background and personal
philosophy, a judge must interpret and apply the law without regard to whether the judge
approves or disapproves of the law in question.
[3] When applying and interpreting the law, a judge sometimes may make good-faith errors
of fact or law. Errors of this kind do not violate this Rule.
[4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure
self-represented litigants the opportunity to have their matters fairly heard.
Comparison to ABA Model Code
Rule 2.2 and its Comments are adopted from the 2007 ABA Model Code without
modification, except that Comment [4] is modified to substitute “self-represented” for “pro se.”
Comparison to Current Tennessee Code
Rule 2.2 comes in part from the first half of the first sentence in Canon 3B(2), which
requires a judge to “be faithful to the law.” Rule 2.2 requires a judge to “uphold and apply the
law.” The Rule also explicitly requires the judge to apply the law “fairly and impartially.” The
Comments are new.
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RULE 2.3 Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties,
without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct
manifest bias or prejudice, or engage in harassment, including but not limited to bias,
prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity,
disability, age, sexual orientation, marital status, socioeconomic status, or political
affiliation, and shall not permit court staff, court officials, or others subject to the judge’s
direction and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain from
manifesting bias or prejudice, or engaging in harassment, based upon attributes including
but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age,
sexual orientation, marital status, socioeconomic status, or political affiliation, against
parties, witnesses, lawyers, or others.
(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from
making legitimate reference to the listed factors, or similar factors, when they are relevant
to an issue in a proceeding.
COMMENT
[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the
proceeding and brings the judiciary into disrepute.
[2] Examples of manifestations of bias or prejudice include but are not limited to epithets;
slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes;
threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or
nationality and crime; and irrelevant references to personal characteristics. Even facial
expressions and body language can convey to parties and lawyers in the proceeding, jurors, the
media, and others an appearance of bias or prejudice. A judge must avoid conduct that may
reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that
denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender,
religion, national origin, ethnicity, disability, age, sexual orientation, marital status,
socioeconomic status, or political affiliation.
[4] Sexual harassment includes but is not limited to sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature that is unwelcome.
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Comparison to ABA Model Code
Rule 2.3 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Subparagraphs (A) and (B) are derived from Canon 3B(5), with modifications. The
prohibition against harassment is now in black letter law, rather than only in the Commentary.
The factors on which bias, prejudice or harassment can be based have been expanded to include
gender, in addition to sex, which is a term of art that may not apply to transgendered individuals.
Other additional factors are ethnicity, marital status, and political affiliation. Subparagraphs (C)
and (D) are taken from Canon 3B(6). Comments [1] and [2] are taken from the Commentary to
3B(5). Comments [3] and [4] are new.
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Rule 2.4 External Influences on Judicial Conduct
(A) A judge shall not be swayed by partisan interests, public clamor or fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other interests or
relationships to influence the judge’s judicial conduct or judgment.
(C) A judge shall not convey or permit others to convey the impression that any person
or organization is in a position to influence the judge.
COMMENT
[1] An independent judiciary requires that judges decide cases according to the law and facts,
without regard to whether particular laws or litigants are popular or unpopular with the public,
the media, government officials, or the judge‟s friends or family. Confidence in the judiciary is
eroded if judicial decision making is perceived to be subject to inappropriate outside influences.
Comparison to ABA Model Code
Rule 2.4 and its Comment are adopted from the 2007 ABA Model Code without
modification, except that “partisan interests” has been added to subparagraph (A).
Comparison to Current Tennessee Code
Rule 2.4(A) is the second sentence of Canon 3B(2), which includes “partisan interests.”
Subparagraphs (B) and (C) are taken from Canon 2B. “Financial interests” is added to the list of
influences that a judge must avoid. Comment [1] is new.
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Rule 2.5 Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties competently, promptly and
diligently.
(B) A judge shall cooperate with other judges and court officials in the administration
of court business.
COMMENT
[1] Competence in the performance of judicial duties requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary to perform a judge‟s responsibilities of
judicial office.
[2] A judge should seek the necessary docket time, court staff, expertise, and resources to
discharge all adjudicative and administrative responsibilities.
[3] Prompt disposition of the court‟s business requires a judge to devote adequate time to
judicial duties, to be punctual in attending court and expeditious in determining matters under
submission, and to take reasonable measures to ensure that court officials, litigants, and their
lawyers cooperate with the judge to that end.
[4] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for
the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A
judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices,
avoidable delays, and unnecessary costs.
[5] A judge is required by law to promptly dispose of cases. See, e.g., Tenn. Code Ann. §20-
9-506 (in a non-jury case, judge must render decision and enter judgment within sixty days of
completion of trial); Tenn. Code Ann. §40-30-111(d) (court must rule within sixty days of
conclusion of proof; final disposition of capital case must be made within one year of filing of
petition); S. Ct. R. 11, §III(c) (no case may be held under advisement for more than sixty days;
motions or other decisions that delay trial or final disposition shall not be held under advisement
for more than thirty days, absent most compelling of reasons).
[6] A judge should be willing to lend assistance to fellow judges in his or her district or
contiguous districts caused by death, illness, recusal or case overload. Judges have an
affirmative duty to interchange and, by Supreme Court policy, they have an obligation to
interchange in contiguous judicial districts if needed. See Tenn. Code Ann. § 17-2-202, Tenn.
Code Ann. § 16-2-509(d) and (e), Tenn. S. Ct. R. 11, § VII (c), and Supreme Court Policy 4.01
(Nov. 1, 2001). General sessions court judges have the same duty to interchange. Tenn. Code
Ann. § 16-15-209(a)(1) and Tenn. Code Ann. § 17-2-208. Presiding judges have the necessary
obligation and authority to reassign cases and judges within their districts. Tenn. Code Ann. §
16-2-509(c), Tenn. Code Ann. § 17-2-109 and Tenn. S. Ct. R. 11, § III. The Supreme Court may
designate and reassign judges as necessary. Tenn. Code Ann. § 16-3-502(3)(A), Tenn. Code
Ann. § 16-2-509(c), Tenn. Code Ann. § 17-2-110 and Tenn. S. Ct. R.11, § IV.
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Comparison to ABA Model Code
Rule 2.5 and its Comments are adopted from the 2007 ABA Model Code with one
important modification. Promptness has been added to the duties of competence and diligence in
carrying out judicial and administrative tasks in the black letter law, rather than being limited to
Comments. Comments [5] and [6] are new.
Comparison to Current Tennessee Code
Rule 2.5(A) combines a portion of Canon 3B(2) addressing competence and part of
Canon 3C involving diligence, and adds the obligation to perform duties with promptness. The
Rule applies to both judicial and administrative duties. Rule 2.5(B) is the second portion of
Canon 3(C)(1), but the requirement to cooperate with other judges and court officials has been
made mandatory. New Comment [1] defines competence. New Comment [2] emphasizes the
duty to perform administrative functions efficiently. Comments [3] and [4] are taken from the
Commentary to Canon 3(B)(8). New Comment [5] reminds judges of the mandates found in
statutes and a Tennessee Supreme Court rule regarding prompt disposition of cases. New
Comment [6] cites various authorities requiring judges to cooperate in the reassignment of cases,
such as in the event of recusal or inability to hear a case.
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Rule 2.6 Ensuring the Right to Be Heard
(A) A judge shall accord to every person who has a legal interest in a proceeding, or that
person’s lawyer, the right to be heard according to law.
(B) A judge may encourage settlement of disputed matters in a proceeding but shall not
act in a manner that coerces any party into settlement. A judge who participates in a
judicial settlement conference shall not preside over the trial or any other contested issue in
that matter.
COMMENT
[1] The right to be heard is an essential component of a fair and impartial system of justice.
Substantive rights of litigants can be protected only if procedures protecting the right to be heard
are observed.
[2] If a judge participates in the settlement of disputes, he or she should be careful that
efforts to further settlement do not undermine any party‟s right to be heard according to law.
Among the factors that a judge should consider when deciding upon an appropriate settlement
practice for a case are (1) whether the parties have requested or voluntarily consented to a certain
level of participation by the judge in settlement discussions, (2) whether the parties and their
counsel are relatively sophisticated in legal matters, (3) whether the case will be tried by the
judge or a jury, (4) whether the parties participate with their counsel in settlement discussions,
(5) whether any parties are unrepresented by counsel, and (6) whether the matter is civil or
criminal.
[3] Information obtained by a judge during a judicial settlement conference is not subject to
the safeguards of the rules of evidence and procedure and may place the trial judge in an
untenable position as to the motions for new trial; judgment notwithstanding the verdict; additurs
and remittiturs; credibility determinations; or other issues in which the judge may not be able to
ignore facts that he or she learned during the settlement proceeding. Therefore, it is not
appropriate for the same judge to participate in a judicial settlement conference and, if such
proceeding does not result in the resolution of the matter, to subsequently preside over the trial of
the same matter or participate in any other contested issue in that matter. See also Rule
2.11(A)(6).
[4] A judicial settlement conference, as discussed in this Rule, is a mediation conducted by a
judicial officer as defined in Tenn. Sup. Ct. Rule 31. A judicial settlement conference does not
include scheduling conferences or other pretrial conferences. See, e.g.,. Tenn. R. Civ. P. 16 and
Tenn. R. Crim. P. 17.1.
Comparison to ABA Model Code
Rule 2.6(A) and Comment [1] are adopted from the 2007 ABA Model Code without
modification. The remaining subparagraphs of the Rule and Comments contain several changes.
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The Task Force strongly felt that a judge who conducts an unsuccessful settlement conference
should be precluded from presiding over the trial of the case. Comment [3] was substantially
modified. As stated in revised Comment [3], information obtained by a judge during the judicial
settlement process is not subject to the safeguards of the rules of evidence and procedure. After
the unsuccessful settlement conference, it is impossible to unring the bell as if the settlement
process and attendant disclosures had not occurred. New Comment [4] clarifies that a judicial
settlement conference, as addressed in this Rule, is a mediation, rather than a procedural pretrial
conference.
Comparison to Current Tennessee Code
Rule 2.6 addresses the right to be heard in greater detail than the prior Code and
recognizes the role of settlement negotiations in dispute resolution. Rule 2.6(A) is the first
sentence of Canon 3B(7). Rule 2.6(B) is new. The first sentence distinguishes between the
permissible action of encouraging settlement and the forbidden action of coercing settlement.
The second sentence is a blanket prohibition against presiding over a trial if the judge
participated in a judicial settlement conference. Comment [3] fleshes out the Task Force‟s
rationale for this provision. Comment [4] is new.
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Rule 2.7 Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when disqualification is
required by Rule 2.11 or other law.
COMMENT
[1] Judges must be available to decide the matters that come before the court. There are
times, however, when disqualification is necessary to protect the rights of litigants and preserve
public confidence in the independence, integrity, and impartiality of the judiciary. Unwarranted
disqualification may bring public disfavor to the court and to the judge personally. The dignity
of the court, the judge‟s respect for fulfillment of judicial duties, and a proper concern for the
burdens that may be imposed upon the judge‟s colleagues require that a judge not use
disqualification to avoid cases that present difficult, controversial, or unpopular issues.
Comparison to ABA Model Code
Rule 2.7 and its Comments are adopted from the 2007 ABA Model Code with only minor
modifications.
Comparison to Current Tennessee Code
Rule 2.7 is Canon 3B(1) with slight modification. Comment [1] is new.
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Rule 2.8 Decorum, Demeanor, and Communication with Jurors
(A) A judge shall require order and decorum in proceedings before the court.
(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses,
lawyers, court staff, court officials, and others with whom the judge deals in an official
capacity, and shall require similar conduct of lawyers, court staff, court officials, and
others subject to the judge’s direction and control.
(C) A judge shall not commend or criticize jurors for their verdict other than in a court
order or opinion in a proceeding, but may express appreciation to jurors for their service
to the judicial system and the community.
COMMENT
[1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the
duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be
efficient and businesslike while being patient and deliberate.
[2] Commending or criticizing jurors for their verdict may imply a judicial expectation in
future cases and may impair a juror‟s ability to be fair and impartial in a subsequent case.
[3] A judge may meet with jurors who choose to remain after trial but should be careful not
to discuss the merits of the case.
Comparison to ABA Model Code
Rule 2.8(A) and 2.8(B) and Comments [1] and [2] are adopted from the 2007 ABA
Model Code without modification. Rule 2.8(C) expressly permits a judge to express
appreciation to jurors for their service to the judicial system and the community. Comment [3] is
clarified in light of the change to Rule 2.8(C).
Comparison to Current Tennessee Code
Rule 2.8(A) is Canon 3B(3). Rule 2.8(B) is Canon 3B(4). Rule 3B(C) is Canon 3B(10).
Comment [1] is the Commentary to Canon 3B(4). Comment [2] is the Commentary to Canon
3B(10). Comment [3] is new.
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Rule 2.9 Ex Parte Communications
(A) A judge shall not initiate, permit, or consider ex parte communications, or consider
other communications made to the judge outside the presence of the parties or their
lawyers, concerning a pending or impending matter, except as follows:
(1) When circumstances require it, ex parte communication for scheduling,
administrative, or emergency purposes, which does not address substantive matters, is
permitted, provided:
(a) the judge reasonably believes that no party will gain procedural,
substantive, or tactical advantage as a result of the ex parte communication;
and
(b) the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication, and gives the parties an
opportunity to respond.
(2) A judge may obtain the advice of a disinterested expert on the law
applicable to a proceeding before the judge, if the judge gives notice to the parties of the
person consulted and the substance of the advice, and affords the parties a reasonable
opportunity to respond to the advice received.
(3) A judge may consult with court staff and court officials whose functions are
to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other
judges, provided the judge makes reasonable efforts to avoid receiving factual information
that is not part of the record, and does not abrogate the responsibility personally to decide
the matter.
(4) [Intentionally omitted]
(5) A judge may initiate, permit, or consider any ex parte communication when
expressly authorized by law to do so.
(B) If a judge receives an unauthorized ex parte communication bearing upon the
substance of a matter, the judge shall make provision promptly to notify the parties of the
substance of the communication and provide the parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter independently, and shall consider only
the evidence presented and any facts that may properly be judicially noticed.
(D) A judge shall make reasonable efforts, including providing appropriate supervision,
to ensure that this Rule is not violated by court staff, court officials, and others subject to
the judge’s direction and control.
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COMMENT
[1] To the extent reasonably possible, all parties or their lawyers shall be included in
communications with a judge. A judge may also direct judicial staff, without invoking the notice
and disclosure provisions of this Rule, to screen written ex parte communications and to take
appropriate action consistent with this Rule.
[2] Whenever the presence of a party or notice to a party is required by this Rule, it is the
party‟s lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice
is to be given.
[3] The proscription against communications concerning a proceeding includes
communications with lawyers, law teachers, and other persons who are not participants in the
proceeding, except to the limited extent permitted by this Rule.
[4] A judge may initiate, permit, or consider ex parte communications authorized by law.
When serving on a mental health court or a drug court, judges may assume a more interactive
role with parties, treatment providers, probation officers, social workers, and others. However, if
this ex parte communication becomes an issue at a subsequent adjudicatory proceeding in which
the judge is presiding, the judge shall either (1) disqualify himself or herself if the judge gained
personal knowledge of disputed facts under Rule 2.11(A)(1) or the judge‟s impartiality might
reasonably be questioned under Rule 2.11(A) or (2) make disclosure of such communications
subject to the waiver provisions of Rule 2.11(C).
[5] A judge may consult with other judges on pending matters, but must avoid ex parte
discussions of a case with judges who have previously been disqualified from hearing the matter,
and with judges who have appellate jurisdiction over the matter.
[6] The prohibition against a judge investigating the facts in a matter extends to information
available in all mediums, including electronic.
[7] A judge may consult ethics advisory committees, outside counsel, or legal experts
concerning the judge‟s compliance with this Code. Such consultations are not subject to the
restrictions of paragraph (A)(2).
Comparison to ABA Model Code
Rule 2.9 and its Comments are adopted from the 2007 ABA Model Code with several
changes. In Rule 2.9(A)(2), the requirements for obtaining advice form a disinterested expert are
relaxed. Notice to the parties need not be written nor given in advance, but the substance of the
advice received must be conveyed to the parties, who have an opportunity to respond. Rule
2.9(A)(4) and the word “inadvertently” in Rule 2.9(B) were deleted. The last sentences of
Comments [1] and [4] are new, and the remainder of Comment [4] has been reworded
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Comparison to Current Tennessee Code
Except for the first sentence of Canon 3B(7), which is now Rule 2.6(A), Rule 2.9(A) is
Canon 3B(7)(a), (b), (c) and (e) with slight wording changes. Tennessee‟s current provision
found in Canon 3B(7)(b) regarding consultation with a disinterested expert is retained, rather
than the revised provision in the 2007 ABA Model Code. Canon 3B(7)(d) regarded a judge‟s ex
parte communication with parties and attorneys in an effort to mediate or settle a case pending
before the judge, which is carried forward into Rule 2.9(A)(4) of the 2007 ABA Model Code,
has been omitted in light of the proposed changes to Rule 2.6(B).
Rule 2.9(B) is new. The word “inadvertent” is omitted from the ABA Model Code
provision because a judge‟s responsibility to act on such ex parte communications should be the
same whether the communication was sent intentionally or inadvertently.
Rule 2.9(C) places in black letter law the prohibition against a judge‟s independent
investigation or consideration of evidence presented, a concept from the sixth paragraph of the
Commentary to Canon 3B(7). Rule 2.9(D) raises to black letter law the prohibition on ex parte
communications by the judge‟s staff, which is currently found in the eighth paragraph of the
Commentary to Canon 3B(7).
Comments [1], [2] and [3] are, respectively, the second third and first paragraphs of the
Commentary to Canon 3B(7). An additional sentence is added to Comment [1] to allow a
judge‟s staff to act as a gatekeeper to screen written ex parte communications. Comment [4] is
new and addresses the relaxed standard for ex parte communications that is utilized in mental
health courts and drug courts, but cross-references the disqualification requirements in Rule 2.11.
Comments [5] through [7] are new.
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RULE 2.10 Judicial Statements on Pending and Impending Cases
(A) A judge shall not make any public statement that might reasonably be expected to
affect the outcome or impair the fairness of a matter pending or impending in any court, or
make any nonpublic statement that might substantially interfere with a fair trial or
hearing.
(B) A judge shall not, in connection with cases, controversies, or issues that are likely to
come before the court, make pledges, promises, or commitments that are inconsistent with
the impartial performance of the adjudicative duties of judicial office.
(C) A judge shall require court staff, court officials, and others subject to the judge’s
direction and control to refrain from making statements that the judge would be
prohibited from making by paragraphs (A) and (B).
(D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements
in the course of official duties, may explain court procedures, and may comment on any
proceeding in which the judge is a litigant in a personal capacity.
(E) Subject to the requirements of paragraph (A), a judge may respond directly or
through a third party to allegations in the media or elsewhere concerning the judge’s
conduct in a matter.
COMMENT
[1] This Rule‟s restrictions on judicial speech are essential to the maintenance of the
independence, integrity, and impartiality of the judiciary.
[2] This Rule does not prohibit a judge from commenting on proceedings in which the judge
is a litigant in a personal capacity or represents a client as permitted by these Rules. In cases in
which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must
not comment publicly.
[3] Depending upon the circumstances, the judge should consider whether it may be preferable
for a third party, rather than the judge, to respond or issue statements in connection with
allegations concerning the judge‟s conduct in a matter.
Comparison to ABA Model Code
Rule 2.10 and its Comments are adopted from the 2007 ABA Model Code without
modification, except for the addition of a phrase to Comment [2]. In addition to being able to
comment on proceedings in which the judge is a litigant in a personal capacity, a judge may also
comment on proceedings in which the judge represents a client, in those limited situations
permitted under the Rules, such as when a new judge is winding up a law practice.
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Comparison to Current Tennessee Code
Rule 2.10 combines the provisions of Canons 3B(9) and 3B(10) regarding restrictions on
judicial speech. Rules 2.10(A), (C), and (D) are Canon 3B(9) reworded and slightly broadened.
Rule 2.10(B), which prohibits a judge from making pledges, promises, or commitments
regarding cases, controversies or issues that are likely to come before the judge, is new, as is
2.10(E). Comments [1] and [3] are new. Comment [2] is derived from the Commentary to
3B(9).
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RULE 2.11 Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a
person within the third degree of relationship to either of them, or the spouse or domestic
partner of such a person is:
(a) a party to the proceeding, or an officer, director, general partner,
managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be
substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s
spouse, domestic partner, parent, or child, or any other member of the judge’s family
residing in the judge’s household, has an economic interest in the subject matter in
controversy or is a party to the proceeding.
(4) The judge knows or learns by means of a timely motion that a party, a
party’s lawyer, or the law firm of a party’s lawyer has made contributions or given such
support to the judge’s campaign that the judge’s impartiality might reasonably be
questioned.
(5) The judge, while a judge or a judicial candidate, has made a public
statement, other than in a court proceeding, judicial decision, or opinion, that commits or
appears to commit the judge to reach a particular result or rule in a particular way in the
proceeding or controversy.
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated
with a lawyer who participated substantially as a lawyer in the matter during
such association;
(b) served in governmental employment, and in such capacity
participated personally and substantially as a lawyer or public official
concerning the proceeding, or has publicly expressed in such capacity an
opinion concerning the merits of the particular matter in controversy;
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(c) was a material witness concerning the matter;
(d) previously presided as a judge over the matter in an inferior court; or
(e) previously participated in a judicial settlement conference in the
matter. This does not prohibit the judge from disposing of any uncontested
issues in the matter.
(B) A judge shall keep informed about the judge’s personal and fiduciary economic
interests, and make a reasonable effort to keep informed about the personal economic
interests of the judge’s spouse or domestic partner and minor children residing in the
judge’s household.
(C) A judge subject to disqualification under this Rule, other than for bias or prejudice
under paragraph (A)(1) or for participation in a judicial settlement conference under
paragraph (A)(6)(e), may disclose on the record the basis of the judge’s disqualification and
may ask the parties and their lawyers to consider, outside the presence of the judge and
court personnel, whether to waive disqualification. If, following the disclosure, the parties
and lawyers agree, without participation by the judge or court personnel, that the judge
should not be disqualified, the judge may participate in the proceeding. The agreement
shall be incorporated into the record of the proceeding.
(D) Upon the filing of a motion seeking disqualification, recusal, or a determination of
constitutional or statutory incompetence, a judge shall act promptly by written order and
either grant or deny the motion, stating the reasons for the ruling, including factual
findings directly addressing the grounds upon which the motion was made.
COMMENT
[1] Under this Rule, a judge is disqualified whenever the judge‟s impartiality might
reasonably be questioned, regardless of whether any of the specific provisions of paragraphs
(A)(1) through (6) apply. In many jurisdictions, the term “recusal” is used interchangeably with
the term “disqualification.”
[2] A judge‟s obligation not to hear or decide matters in which disqualification is required
applies regardless of whether a motion to disqualify is filed.
[3] The rule of necessity may override the rule of disqualification. For example, a judge
might be required to participate in judicial review of a judicial salary statute, or might be the only
judge available in a matter requiring immediate judicial action, such as a hearing on probable
cause or a temporary restraining order. In matters that require immediate action, the judge must
disclose on the record the basis for possible disqualification and make reasonable efforts to
transfer the matter to another judge as soon as practicable.
[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative
of the judge is affiliated does not itself disqualify the judge. If, however, the judge‟s impartiality
might reasonably be questioned under paragraph (A), or the relative is known by the judge to
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have an interest in the law firm that could be substantially affected by the proceeding under
paragraph (A)(2)(c), the judge‟s disqualification is required.
[5] A judge should disclose on the record information that the judge believes the parties or
their lawyers might reasonably consider relevant to a possible motion for disqualification, even if
the judge believes there is no basis for disqualification.
[6] “Economic interest,” as set forth in the Terminology section, means ownership of more
than a de minimis legal or equitable interest. Except for situations in which a judge participates
in the management of such a legal or equitable interest, or the interest could be substantially
affected by the outcome of a proceeding before a judge, it does not include:
(1) an interest in the individual holdings within a mutual or common investment fund;
(2) an interest in securities held by an educational, religious, charitable, fraternal, or
civic organization in which the judge or the judge‟s spouse, domestic partner, parent, or
child serves as a director, officer, advisor, or other participant;
(3) a deposit in a financial institution or deposits or proprietary interests the judge
may maintain as a member of a mutual savings association or credit union, or similar
proprietary interests; or
(4) an interest in the issuer of government securities held by the judge.
[7] The fact that a lawyer in a proceeding, or a litigant, contributed to the judge‟s campaign,
or supported the judge in his or her election does not of itself disqualify the judge. Absent other
facts, campaign contributions within the limits of the “Campaign Contributions Limits Act of
1995,” Tennessee Code Annotated Title 2, Chapter 10, Part 3, or similar law should not result in
disqualification. However, campaign contributions or support a judicial candidate receives may
give rise to disqualification if the judge‟s impartiality might reasonably be questioned. In
determining whether a judge‟s impartiality might reasonably be questioned for this reason, a
judge should consider the following factors among others:
(1) The level of support or contributions given, directly or indirectly, by a litigant in
relation both to aggregate support (direct and indirect) for the individual judge‟s
campaign and to the total amount spent by all candidates for that judgeship;
(2) If the support is monetary, whether any distinction between direct contributions
or independent expenditures bears on the disqualification question;
(3) The timing of the support or contributions in relation to the case for which
disqualification is sought; and
(4) If the supporter or contributor is not a litigant, the relationship, if any, between the
supporter or contributor and (i) any of the litigants, (ii) the issue before the court, (iii) the
judicial candidate or opponent, and (iv) the total support received by the judicial
candidate or opponent and the total support received by all candidates for that judgeship.
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[8] Trial judges sometimes sit by designation on courts of appeal, and vice versa. Such
judges should not hear cases over which they presided in a different court, and paragraph A(6)(d)
makes that clear. This Rule, however, applies only to judges who have heard the case in “an
inferior court,” and does not apply to a judge who decided a case on a panel of an appellate court
subsequently participating in the rehearing of the case en banc with that same court.
[9] There are several bases upon which a judge should determine whether to preside over a
case. These include this Rule, Tennessee Constitution Article VI, Section 11 (incompetence) and
Tenn. Code Ann. Title 17, Chapter 2 (incompetence, disability and interchange). This Rule
requires judges to employ constitutional, statutory and procedural rules to determine motions for
issues related to whether the judge should preside over a case.
Comparison to ABA Model Code
Rule 2.11 and its Comments are adopted from the 2007 ABA Model Code with several
changes. Rule 2.11(A)(4) does not contain a dollar amount of support that triggers
disqualification, but instead has a more flexible standard. Rule 2.11(A)(6)(d) only requires
disqualification if the judge previously presided over the matter in an inferior court. Rules
2.11(A)(6)(e) and 2.11(D) are new, as are Comments [7] through [9]. Rule 2.11(C) has been
modified slightly to reference participation in a judicial settlement conference.
Comparison to Current Tennessee Code
Rule 2.11 is derived from Canons 3E and 3F. Rule 2.11(A) and its subparagraphs (1),
(2), and (3) are Canon E(1) and its subparagraphs, with modifications. “Domestic partner” is
added to the Rule and treated comparably to a spouse for purposes of evaluating conflicts. Rule
2.11(A)(4) is new and requires disqualification if a party, lawyer or lawyer‟s firm made such
contributions or support to the judge‟s campaign as to call impartiality into question. Also new
is Rule 2.11(A)(5), which requires disqualification if the judge has previously made public
statements that appear to commit the judge to reach a particular result in the case.
Rule 2.11(A)(6)(a) through (c) are derived from Canon 3E(1)(b) and its Commentary.
Subparagraphs (d) and (e) are new, and the latter requires disqualification of a judge who
participated in a judicial settlement conference in the case, except for the handling of
uncontested matters, such as entry of the agreed judgment. Rules 2.11(B) and (C) are Canons
3E(2) and 3F, respectively, with minor changes.
New Rule 2.11(D) provides for adjudication of contested motions for disqualification.
Changes are also proposed to the Rules of Civil, Criminal and Appellate Procedure to address
this issue.
The first sentence of Comment [1] is taken from the first sentence to the Commentary to
Canon 3E(1). The second sentence is new. Comments [2] and [6] through [9] are new.
Comment [3] comes from the third paragraph of Commentary to Canon 3E(1). Comment [4] is
derived from the Commentary to Canon 3E(1)(d). Comment [5] is the second paragraph of
Commentary to Canon 3E(1).
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RULE 2.12 Supervisory Duties
(A) A judge shall require court staff, court officials, and others subject to the judge’s
direction and control to act in a manner consistent with the judge’s obligations under this
Code.
(B) A judge with supervisory authority for the performance of other judges shall take
reasonable measures to ensure that those judges properly discharge their judicial
responsibilities, including the prompt disposition of matters before them.
COMMENT
[1] A judge is responsible for his or her own conduct and for the conduct of others, such as
staff, when those persons are acting at the judge‟s direction or control. A judge may not direct
court personnel to engage in conduct on the judge‟s behalf or as the judge‟s representative when
such conduct would violate the Code if undertaken by the judge.
[2] Public confidence in the judicial system depends upon timely justice. To promote the
efficient administration of justice, a judge with supervisory authority must take the steps needed
to ensure that judges under his or her supervision administer their workloads promptly. For
further guidance on supervisory duties, see Tennessee Code Annotated section 16-2-509(b)
(duties of the presiding judge) and other applicable laws, such as Metropolitan Nashville Charter
§ 14.09A.
Comparison to ABA Model Code
Rule 2.12 and its Comments are adopted from the 2007 ABA Model Code without
modification except for the addition of a sentence added to Comment [1] cross-referencing
relevant Tennessee law.
Comparison to Current Tennessee Code
Rule 2.12 combines Canons 3C(2) and 3C(3). The Comments are new.
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RULE 2.13 Administrative Responsibilities
(A) In making administrative appointments, a judge:
(1) shall exercise the power of appointment impartially and on the basis of
merit; and
(2) shall avoid nepotism, favoritism, and unnecessary appointments.
(B) A judge shall not appoint a lawyer to a position if the judge either knows that the
lawyer, the lawyer’s firm or the lawyer’s spouse or domestic partner, has made
contributions or given such support to the judge’s campaign that the judge’s impartiality
might reasonably be questioned, or learns of such contribution or support by means of a
timely motion by a party or other person properly interested in the matter, unless:
(1) the position is substantially uncompensated;
(2) the lawyer has been selected in rotation from a list of qualified and available
lawyers compiled without regard to their having made political contributions or given
support; or
(3) the judge or another presiding or administrative judge affirmatively finds
that no other lawyer is willing, competent, and able to accept the position.
(C) A judge shall not approve compensation of appointees beyond the fair value of
services rendered.
(D) When a judge refers litigants to community resources as a condition or requirement
relating to litigation, such referrals shall be made impartially and on the basis of merit. A
judge shall avoid nepotism and favoritism. For purposes of this provision, a “community
resource” is any person or organization providing services such as, but not limited to:
counseling services; driver education or traffic safety programs; mental health, substance
abuse, or other treatment programs; parenting classes; private probation services; and
similar types of services.
COMMENT
[1] Appointees of a judge include assigned counsel, officials such as referees, magistrates,
commissioners, special masters, special judges, substitute judges, receivers, and guardians, and
personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an
award of compensation does not relieve the judge of the obligation prescribed by paragraph (A).
[2] Nepotism is the appointment or hiring of any relative within the third degree of
relationship of either the judge or the judge‟s spouse or domestic partner, or the spouse or
domestic partner of such relative, as well as those relatives defined in Tennessee Code Annotated
sections 8-31-101 et seq., the Tennessee State Employees Uniform Nepotism Policy.
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[3] The rule against making administrative appointments of lawyers who have provided such
contributions or support to a judge‟s election campaign that the judge‟s impartiality might
reasonably be questioned includes an exception for positions that are substantially
uncompensated, such as those for which the lawyer‟s compensation is limited to reimbursement
for out-of-pocket expenses. In determining whether a judge‟s impartiality might reasonably be
questioned in connection with such appointments, a judge should consider the following factors
among others:
(1) The level of support or contributions given, directly or indirectly, by a lawyer, the
lawyer‟s firm or the lawyer‟s spouse or domestic partner, in relation both to aggregate support
(direct and indirect) for the individual judge‟s campaign and to the total amount spent by all
candidates for that judgeship;
(2) If the support is monetary, whether any distinction between direct contributions
or independent expenditures bears on the question of the judge‟s impartiality; and
(3) The timing of the support or contributions in relation to the appointment.
[4] It is increasingly common for trial judges, either directly or acting through court
employees or court-affiliated agencies, to refer litigants to a variety of community resources. For
example, litigants may be required by a court to complete treatment programs, parenting classes,
driver education or traffic safety programs, etc., or to be monitored by private probation services.
Paragraph (D) requires that such referrals be made impartially and on the basis of merit, and
without nepotism or favoritism.
Comparison to ABA Model Code
Rules 2.13(A) and (C) are adopted from the 2007 ABA Model Code without
modification. The bright line test of a specific dollar amount of campaign contributions has been
deleted from Rule 2.13(B) and replaced with a more flexible test, the application of which is
detailed in modified Comment [3]. Rule 2.13(D) is new. In Comment [1], the categories of
appointees of a judge have been expanded. Comment [2] has been modified to incorporate
Tennessee law regarding nepotism. Comment [4] is new.
Comparison to Current Tennessee Code
Rule 2.13 is derived from Canons 3C(4) and 3C(5) and the Commentary thereto. Rule
2.13(B) brings into black letter law a prohibition on making appointments based on campaign
contributions or support. Comment [3] explains how to determine whether such support rises to
an inappropriate level.
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RULE 2.14 Disability and Impairment
A judge having a reasonable belief that the performance of a lawyer or another judge is
impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take
appropriate action, which may include a confidential referral to a lawyer or judicial
assistance program.
COMMENT
[1] “Appropriate action” means action intended and reasonably likely to help the judge or
lawyer in question address the problem and prevent harm to the justice system. Depending upon
the circumstances, appropriate action may include but is not limited to speaking directly to the
impaired person, notifying an individual with supervisory responsibility over the impaired
person, or making a referral to an assistance program.
[2] Taking or initiating corrective action by way of referral to an assistance program may
satisfy a judge‟s responsibility under this Rule. Assistance programs have many approaches for
offering help to impaired judges and lawyers, such as intervention, counseling, or referral to
appropriate health care professionals. Depending upon the gravity of the conduct that has come
to the judge‟s attention, however, the judge may be required to take other action, such as
reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule
2.15.
Comparison to ABA Model Code
Rule 2.14 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Rule 2.14 and its Comments are new.
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RULE 2.15 Responding to Judicial and Lawyer Misconduct
(A) A judge having knowledge that another judge has committed a violation of this
Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or
fitness as a judge in other respects shall inform the appropriate authority.
(B) A judge having knowledge that a lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question regarding the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate
authority.
(C) A judge who receives information indicating a substantial likelihood that another
judge has committed a violation of this Code should take appropriate action.
(D) A judge who receives information indicating a substantial likelihood that a lawyer
has committed a violation of the Rules of Professional Conduct should take appropriate
action.
COMMENT
[1] Taking action to address known misconduct is a judge‟s obligation. Paragraphs (A) and
(B) impose an obligation on the judge to report to the appropriate disciplinary authority the
known misconduct of another judge or a lawyer that raises a substantial question regarding the
honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known
misconduct among one‟s judicial colleagues or members of the legal profession undermines a
judge‟s responsibility to participate in efforts to ensure public respect for the justice system. This
Rule limits the reporting obligation to those offenses that an independent judiciary must
vigorously endeavor to prevent.
[2] A judge who does not have actual knowledge that another judge or a lawyer may have
committed misconduct, but receives information indicating a substantial likelihood of such
misconduct, should take appropriate action under paragraphs (C) and (D). Appropriate action
may include, but is not limited to, communicating directly with the judge who may have violated
this Code, communicating with a supervising judge, or reporting the suspected violation to the
appropriate authority or other agency or body. Similarly, actions to be taken in response to
information indicating that a lawyer has committed a violation of the Rules of Professional
Conduct may include but are not limited to communicating directly with the lawyer who may
have committed the violation, or reporting the suspected violation to the appropriate authority or
other agency or body.
Comparison to ABA Model Code
Rules 2.15(A) and (B) and Comment [1] are adopted from the 2007 ABA Model Code
without modification. In Rules 2.15(C) and (D), “shall” is replaced by “should.” In Comment
[2], “is required to” is replaced by “should.”
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Comparison to Current Tennessee Code
Rule 2.15 is a modified version of Canons 3D(1) and (2) and the Commentary thereto,
but a judge‟s duties remain unchanged from the current Tennessee Code.
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RULE 2.16 Cooperation with Disciplinary Authorities
(A) A judge shall cooperate and be candid and honest with judicial and lawyer
disciplinary agencies.
(B) A judge shall not retaliate, directly or indirectly, against a person known or
suspected to have assisted or cooperated with an investigation of a judge or a lawyer.
COMMENT
[1] Cooperation with investigations and proceedings of judicial and lawyer discipline
agencies, as required in paragraph (A), instills confidence in judges‟ commitment to the integrity
of the judicial system and the protection of the public.
Comparison to ABA Model Code
Rule 2.16 and its Comment are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Rule 2.16 and its Comment are new.
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CANON 3
A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL
ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS
OF JUDICIAL OFFICE.
Comparison to ABA Model Code
Canon 3 is adopted from the 2007 ABA Model Code without modification.
Comparison to Current Tennessee Code
Canon 3 and its Rules are based primarily on Canon 4, along with portions of Canon 2
involving judge‟s personal activities. The new Canon expands the reach of this Canon to include
“personal” as well as “extrajudicial” activities and replaces “conflict with judicial obligations”
with “conflict with the obligations of judicial office.”
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RULE 3.1 Extrajudicial Activities in General
A judge may engage in personal or extrajudicial activities, except as prohibited by law or
this Code. However, when engaging in such activities, a judge shall not:
(A) participate in activities that will interfere with the proper and timely performance
of the judge’s judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality;
(D) engage in conduct that would appear to a reasonable person to be coercive; or
(E) make inappropriate use of court premises, staff, stationery, equipment, or other
resources.
COMMENT
[1] To the extent that time permits, and judicial independence and impartiality are not
compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are
uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and
the administration of justice, such as by speaking, writing, teaching, or participating in scholarly
research projects. In addition, judges are permitted and encouraged to engage in educational,
religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when
the activities do not involve the law. See Rule 3.7.
[2] Participation in both law-related and other extrajudicial activities helps integrate judges
into their communities, and furthers public understanding of and respect for courts and the
judicial system.
[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the
judge‟s official or judicial actions, are likely to appear to a reasonable person to call into
question the judge‟s integrity and impartiality. Examples include jokes or other remarks that
demean individuals based upon their race, sex, gender, religion, national origin, ethnicity,
disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge‟s
personal and extrajudicial activities must not be conducted in connection or affiliation with an
organization that practices invidious discrimination. See Rule 3.6.
[4] While engaged in personal or extrajudicial activities, judges must not coerce others or
take action that would reasonably be perceived as coercive. For example, depending upon the
circumstances, a judge‟s solicitation of contributions or memberships for an organization, even
as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated
to respond favorably, or would do so to curry favor with the judge.
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Comparison to ABA Model Code
Rule 3.1 and its Comments are adopted from the 2007 ABA Model Code with slight
modifications. The word “personal” is added to make the Rule more complete and accurate. The
addition of “and timely” to Rule 3.1(A) reflects the reality that participation in too many
activities can impair the performance of judicial duties. Rule 3.1(E) is reworded to recognize
that. In limited circumstances, non-law related use of court resources may be appropriate. For
example, a judge might appropriately ask an administrative assistant to cancel the judge‟s
personal appointment when a trial runs late. Similarly, a judge might check the weather forecast
on the office computer.
Comments [1] and [2] are adopted from the 2007 ABA Model Code without
modification. Comments [3] and [4] are adopted from the 2007 ABA Model Code, but
specifically address personal, as well as extrajudicial, activities.
Comparison to Current Tennessee Code
Rule 3.1 is similar to Canon 4A, but is organized to permit extrajudicial activities, except
where specifically prohibited. It also specifically encompasses personal, as well as extrajudicial,
activities. Rule 3.1(A) is Canon 4A(3), but with the addition of the prohibition against activities
that prevent a judge from “timely” performance of judicial duties. Rule 3.1(B) is new, derived
from Canon 4A(3), but contains more specific content regarding activities that would lead to
frequent disqualification. Rule 3.1(C) is based upon Canon 4A(1), but with expanded coverage
and revised language. Rule 3.1(C) substituted the phrase “would appear to a reasonable person
to undermine” for “cast reasonable doubt on,” and broadened coverage from “act impartially” to
“the judge‟s independence, integrity, or impartiality.”
Rule 3.1(D) is new and adds a new provision to guard against overt or subtle efforts by a
judge to coerce others into participating in extrajudicial activities favored by the judge. Rule
3.1(E) is new, but has some overlap with aspects of Canon 2B (“lend the prestige of judicial
office to advance the private interests of the judge or others”). It adds a new prohibition against
inappropriately using court facilities and other resources for a judge‟s extrajudicial activities.
Comment [1] is derived from the first paragraph of the Commentary following Canon 4B,
although the subject matter of Canon 4B, Avocational Activities, is not addressed separately.
Comment [2] is based upon the first paragraph of the Commentary following Canon 4A.
Comment [3] is similar to the second paragraph of the Commentary to Canon 4A. Comment [4]
is new.
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RULE 3.2 Appearances before Governmental Bodies and Consultation with
Government Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with,
an executive or a legislative body or official, except:
(A) in connection with matters concerning the law, the legal system, or the
administration of justice;
(B) in connection with matters about which the judge acquired knowledge or expertise
in the course of the judge’s judicial duties; or
(C) when the judge is self-represented in a matter involving the judge’s legal or
economic interests, or when the judge is acting in a fiduciary capacity.
COMMENT
[1] Judges possess special expertise in matters of law, the legal system, and the
administration of justice, and may properly share that expertise with governmental bodies and
executive or legislative branch officials.
[2] In appearing before governmental bodies or consulting with government officials, judges
must be mindful that they remain subject to other provisions of this Code, such as Rule 1.3,
prohibiting judges from using the prestige of office to advance their own or others‟ interests,
Rule 2.10, governing public comment on pending and impending matters, and Rule 3.1(C),
prohibiting judges from engaging in personal or extrajudicial activities that would appear to a
reasonable person to undermine the judge‟s independence, integrity, or impartiality.
[3] In general, it would be an unnecessary and unfair burden to prohibit judges from
appearing before governmental bodies or consulting with government officials on matters that
are likely to affect them as private citizens, such as zoning proposals affecting their real property.
In engaging in such activities, however, judges must not refer to their judicial positions, and must
otherwise exercise caution to avoid using the prestige of judicial office.
[4] On occasion, some judges, including general sessions court judges, juvenile court judges
and municipal court judges, find it necessary to appear before legislative bodies to address
budget requests and similar concerns. Such appearances fall within the exceptions set forth in
3.2(A) and (B). Similarly, judges may appear before governmental bodies to endorse projects
and programs directly related to the law, the legal system, the administration of justice and the
provision of services to those coming before the courts, and may actively support the need for
funding of such projects or programs. This support can occur by personal appearance or by
writing, such as a letter to be submitted with a request for funding by an entity that provides
services to those coming before the courts.
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Comparison to ABA Model Code
Rule 3.2 and Comments [1] and [3] are adopted from the 2007 ABA Model Code without
modification. Comment [2] specifically addresses personal, as well as extrajudicial, activities.
The term “self-represented” replaces “pro se.” Comment [4] is new.
Comparison to Current Tennessee Code
Rule 3.2(A) is similar to Canon 4C(1). The addition of the term “voluntarily”
demonstrates that the Rule‟s prohibitions do not apply to a judge who has been subpoenaed.
Rule 3.2(B) is new. Rule 3.2(C) is essentially the same as the last clause of Canon 4C(1), but
adds that a judge may appear when acting in a fiduciary capacity. All of the Comments are new.
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RULE 3.3 Testifying as a Character Witness
A judge shall not testify as a character witness in a judicial, administrative, or other
adjudicatory proceeding or otherwise vouch for the character of a person in a legal
proceeding, except when duly subpoenaed.
COMMENT
[1] A judge who, without being subpoenaed, testifies as a character witness abuses the
prestige of judicial office to advance the interests of another. See Rule 1.3. Except in unusual
circumstances where the demands of justice require, a judge should discourage a party from
requiring the judge to testify as a character witness.
Comparison to ABA Model Code
Rule 3.3 and its Comment are adopted from the 2007 ABA Model Code. The word
“summoned” has been changed to “subpoenaed.”
Comparison to Current Tennessee Code
Rule 3.3 is similar to the last sentence of Canon 2B, which prohibits a judge from
testifying voluntarily as a character witness, but clarifies the types of proceedings to which it
applies. Comment [1] is a simplified version of the last paragraph of the Commentary to Canon
2B.
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RULE 3.4 Appointments to Governmental Positions
A judge shall not accept appointment to a governmental committee, board, commission, or
other governmental position, unless it is one that concerns the law, the legal system, or the
administration of justice.
COMMENT
[1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities
that concern the law, the legal system, or the administration of justice. Even in such instances,
however, a judge should assess the appropriateness of accepting an appointment, paying
particular attention to the subject matter of the appointment and the availability and allocation of
judicial resources, including the judge's time commitments, and giving due regard to the
requirements of the independence and impartiality of the judiciary.
[2] A judge may represent his or her country, state, or locality on ceremonial occasions or in
connection with historical, educational, or cultural activities. Such representation does not
constitute acceptance of a government position.
Comparison to ABA Model Code
Rule 3.4 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Rule 3.4 is a simplified version of the first sentence of Canon 4C(2). Comment [1] is
based on the Commentary to Canon 4C(2). The second sentence of Canon 4C(2) has been
moved from black letter law and placed in Comment [2].
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RULE 3.5 Use of Nonpublic Information
A judge shall not disclose or use nonpublic information acquired in a judicial capacity for
any purpose unrelated to the judge’s judicial duties.
COMMENT
[1] In the course of performing judicial duties, a judge may acquire information that is
unavailable to the public. The judge must not reveal or use such information for personal gain or
for any purpose unrelated to his or her judicial duties. The judge should take special care to
ensure that court staff, court officials, and others subject to the judge‟s direction and control are
aware of this Rule and shall require them to act in a manner consistent with the judge‟s
obligations under this Code. See Rule 2.12(A).
[2] This Rule is not intended, however, to affect a judge‟s ability to act on information as
necessary to protect the health or safety of the judge or a member of a judge‟s family, court
personnel, or other judicial officers if consistent with other provisions of this Code.
Comparison to ABA Model Code
Rule 3.5 is adopted from the 2007 ABA Model Code, but with the deletion of the word
“intentionally.” A judge should not, either intentionally or unintentionally, disclose or use
nonpublic information acquired in a judicial capacity for unrelated purposes. Some states and
the ABA have added the term “intentionally” to the 1990 version of this code provision,
apparently on the theory that discipline should not be imposed for a careless disclosure.
However, the resulting harm can be the same whether the disclosure is intentional or
unintentional, although the sanction might be significantly different.
The first sentence of Comment [1] is adopted from the 2007 ABA Model Code with the
deletion of the phrase “of commercial or other value” because protection against disclosure
should also extend to nonpublic information that is not commercial and has no monetary value.
For example, in the context of a criminal case, disclosure of certain nonpublic information could
cause jeopardy to an individual‟s safety. The second sentence is added to emphasize the
importance of enforcing this Rule with respect to court staff. Comment [2] is adopted from the
2007 ABA Model Code without modification.
Comparison to Current Tennessee Code
Rule 3.5 is based on Canon 3B(11), which does not differentiate between intentional and
unintentional use of nonpublic information acquired in a judicial capacity. Comments [1] and
[2] are new.
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RULE 3.6 Affiliation with Discriminatory Organizations
(A) A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or
sexual orientation.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows
or should know that the organization practices invidious discrimination on one or more of
the bases identified in paragraph (A). A judge’s attendance at an event in a facility of an
organization that the judge is not permitted to join is not a violation of this Rule when the
judge’s attendance is an isolated event that could not reasonably be perceived as an
endorsement of the organization’s practices.
COMMENT
[1] A judge‟s public manifestation of approval of invidious discrimination on any basis gives
rise to the appearance of impropriety and diminishes public confidence in the integrity and
impartiality of the judiciary. A judge‟s membership in an organization that practices invidious
discrimination creates the perception that the judge‟s impartiality is impaired.
[2] An organization is generally said to discriminate invidiously if it arbitrarily excludes
from membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual
orientation persons who would otherwise be eligible for admission. Whether an organization
practices invidious discrimination is a complex question to which judges should be attentive. The
answer cannot be determined from a mere examination of an organization‟s current membership
rolls, but rather, depends upon how the organization selects members, as well as other relevant
factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or
cultural values of legitimate common interest to its members, or whether it is an intimate, purely
private organization whose membership limitations could not constitutionally be prohibited.
[3] When a judge learns that an organization to which the judge belongs engages in invidious
discrimination, the judge must resign immediately from the organization.
[4] A judge‟s membership in a religious organization as a lawful exercise of the freedom of
religion is not a violation of this Rule.
[5] This Rule does not apply to national or state military service.
Comparison to ABA Model Code
Rule 3.6 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Rule 3.6(A) is identical to the black-letter text of Canon 2C, except that the list of
prohibited bases of invidious discrimination has been expanded by adding gender, ethnicity, and
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sexual orientation. Rule 3.6(B) is based in part on a portion of the Commentary to Canon 2C. It
goes further, however, and focuses on the extent of the judge‟s use of the benefits and facilities
of a discriminatory organization.
Comments [1] and [2] are derived from the Commentary to Canon 2C, although
significantly revised, recast and reorganized. Comment [3], which is also based on that
Commentary, omits the prior provision allowing a judge a period of up to one year to resign from
organizations that practice invidious discrimination; any active participation in such an entity is
now precluded under black letter law. Comments [4] and [5], which are both new, carve out
exceptions for religious and military organizations.
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RULE 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic
Organizations and Activities
(A) Subject to the requirements of Rule 3.1, a judge may participate in activities
sponsored by organizations or governmental entities concerned with the law, the legal
system, or the administration of justice, and those sponsored by or on behalf of
educational, religious, charitable, fraternal, or civic organizations not conducted for profit,
including but not limited to the following activities:
(1) assisting such an organization or entity in planning related to fund-raising,
and participating in the management and investment of the organization’s or entity’s
funds;
(2) soliciting contributions for such an organization or entity, but only from
members of the judge’s family, or from judges over whom the judge does not exercise
supervisory or appellate authority;
(3) soliciting membership for such an organization or entity, even though the
membership dues or fees generated may be used to support the objectives of the
organization or entity, but only if the organization or entity is concerned with the law, the
legal system, or the administration of justice;
(4) appearing or speaking at, receiving an award or other recognition at, being
featured on the program of, and permitting his or her title to be used in connection with an
event of such an organization or entity, but if the event serves a fund-raising purpose, the
judge may participate only if the event concerns the law, the legal system, or the
administration of justice;
(5) making recommendations to such a public or private fund-granting
organization or entity in connection with its programs and activities, but only if the
organization or entity is concerned with the law, the legal system, or the administration of
justice; and
(6) serving as an officer, director, trustee, or nonlegal advisor of such an
organization or entity, unless it is likely that the organization or entity:
(a) will be engaged in proceedings that would ordinarily come before the
judge; or
(b) will frequently be engaged in adversary proceedings in the court of
which the judge is a member, or in any court subject to the appellate
jurisdiction of the court of which the judge is a member.
(B) A judge may encourage lawyers to provide pro bono publico legal services.
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COMMENT
[1] The activities permitted by paragraph (A) generally include those sponsored by or
undertaken on behalf of public or private not-for-profit educational institutions, and other not-
for-profit organizations, including law-related, charitable, and other organizations. The activities
permitted by paragraph (A) do not include those sponsored by or on behalf of organizations that
have as a primary purpose advocating in political processes for or against change in the laws
related to limited subject areas. Activities relating to such political advocacy organizations are
subject to the requirements of Rule 3.1, as well as Canon 4 and the Rules thereunder.
Furthermore, the activities permitted by paragraph (A) do not include those sponsored by or on
behalf of organizations whose members comprise or frequently represent the same side in
litigation.
[2] Even for law-related organizations, a judge should consider whether the membership and
purposes of the organization, or the nature of the judge‟s participation in or association with the
organization, would conflict with the judge‟s obligation to refrain from activities that reflect
adversely upon a judge‟s independence, integrity, and impartiality.
[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does
not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve
as an usher or a food server or preparer, or to perform similar functions, at fund-raising events
sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities
are not solicitation and do not present an element of coercion or abuse the prestige of judicial
office.
[4] Identification of a judge‟s position in educational, religious, charitable, fraternal, or civic
organizations on letterhead used for fund-raising or membership solicitation does not violate this
Rule. The letterhead may list the judge‟s title or judicial office if comparable designations are
used for other persons.
[5] In addition to appointing lawyers to serve as counsel for indigent parties in individual
cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro
bono publico legal services, if in doing so the judge does not employ coercion, or abuse the
prestige of judicial office. Such encouragement may take many forms, including providing lists
of available programs, training lawyers to do pro bono publico legal work, and participating in
events recognizing lawyers who have done pro bono publico work.
[6] With regard to a judge‟s obligations to supervise staff as to matters addressed in this
Rule, see Rule 2.12.
Comparison to ABA Model Code
Rule 3.7 and all of its Comments except Comment [1] are adopted from the 2007 ABA
Model Code without modification. To Comment [1] is added language clarifying that the Rule
does not permit judicial participation in activities sponsored by organizations that have as a
primary purpose advocating in political processes for or against changing the law. For example,
accepting an award from an organization established to lobby for or against the legalization of a
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particular form of mining or drilling is inappropriate. Also, language from Commentary to
Tennessee‟s Canon 4D(5)(a) is added to reflect that judicial participation is prohibited in
activities sponsored by or on behalf of organizations whose members comprise or frequently
represent the same side in litigation.
Comparison to Current Tennessee Code
Rule 3.7 is based primarily on Canon 4C(3). Permissible activities are clearly subject to
the requirements of Rule 3.1, which prohibits a variety of personal and extrajudicial activities,
including those that could lead to frequent disqualification. The concepts in Rule 3.7(A) are no
longer limited to a judge‟s involvement as an officer, director or trustee. The rule covers all
activities related to an organization.
Rule 3.7(A)(1) and (2) are derived from Canon 4C(3)(b)(i). A judge continues to have
severe restrictions on fundraising activities. Personal solicitation continues to be generally
prohibited, but the exception allowing a judge to solicit funds from other judges over whom the
judge has no supervisory or appellate authority has been expanded to include a judge‟s family
members. Rule 3.7(3) modifies Canon 4C(3)(b)(iii), but excepts from the ban membership
solicitation for law-related organizations.
Rule 3.7(A)(4) is new. It allows a judge to appear or speak at, receive an award at, be on
the program of, or permit his or her name to be used in connection with events of an
organization, unless the event is a fundraiser. In that event, the judge may only participate if the
event is law-related. This exception changes the position set forth in Commentary to Canon
4C(3)(b), which prohibits a judge from being a speaker or guest of honor at any fundraiser,
whether or not it is law-related.
Rule 3.7(A)(5) and Rule 3.7(A)(6) are, respectively, Canon 4C(b)(ii) and Canon 4C(a).
Rule 3.7(B) is new and is intended to encourage judges to provide leadership in increasing pro
bono representation.
Comments [1], [3] and [5] are new. Comment [1] incorporates the concept found in the
Commentary to Canon 4D(5)(a), which prohibits a judge from accepting a gift or testimonial
from organizations whose members comprise or frequently represent the same side in litigation,
but expands the concept to all of the activities listed in Rule 3.7(A). Comment [2] is based on
the Commentary to Canon 4C(3). Comment [4] is based on the Commentary to Canon 4C(3)(b).
Comment [6] is new.
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RULE 3.8 Appointments to Fiduciary Positions
(A) A judge shall not accept appointment to serve in a fiduciary position, such as
executor, administrator, trustee, guardian, conservator, attorney in fact, or other personal
representative. A judge may, however, serve in one of these capacities for a member of the
judge’s family, or in a fiduciary capacity for the judge’s place of worship, only if such
service will not interfere with the proper performance of judicial duties.
(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be
engaged in proceedings that would ordinarily come before the judge, or if the estate, trust,
or ward becomes involved in adversary proceedings in the court on which the judge serves,
or one under its appellate jurisdiction.
(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on
engaging in financial activities that apply to a judge personally.
(D) If a person who is serving in a fiduciary position becomes a judge, he or she must
comply with this Rule as soon as reasonably practicable, but in no event later than one year
after becoming a judge.
COMMENT
[1] A judge should recognize that other restrictions imposed by this Code may conflict with a
judge‟s obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For
example, serving as a fiduciary might require frequent disqualification of a judge under Rule
2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if
the amount of stock held is more than de minimis.
Comparison to ABA Model Code
Rule 3.8 and its Comment are adopted from the 2007 ABA Model Code without
modification, except for the addition of “conservator” to the list of fiduciary positions, and the
additional exception for fiduciary positions at the judge‟s place of worship.
Comparison to Current Tennessee Code
Rule 3.8 and subparagraphs (A), (B) and (C) are Canon 4E, with minor rewording. Rule
3.8(D) is new and is derived from the Commentary to Canon 4E. It now contains a definitive
deadline for compliance after one becomes a judge. It also contains the additional exception for
fiduciary positions at the judge‟s place of worship.
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RULE 3.9 Service as Arbitrator or Mediator
A judge shall not act as an arbitrator or a mediator or perform other judicial functions
apart from the judge’s official duties unless expressly authorized by law.
COMMENT
[1] This Rule does not prohibit a judge from participating in arbitration, mediation, or
settlement conferences performed as part of assigned judicial duties. Rendering dispute
resolution services apart from those duties, whether or not for economic gain, is prohibited
unless it is expressly authorized by law. See Tenn. S. Ct. R. 31, §17 (permitting various part-
time judges to serve as mediators) and Tenn. S. Ct. R. 31, §20 (authorizing trial judges to
participate in judicial settlement conferences). See also Rule 2.6 and Comments [2], [3] and [4]
thereto regarding the role of a judge in judicial settlement conferences. A judge who participates
in a judicial settlement conference is precluded by Rule 2.6 from presiding over the trial or any
other contested issues in that matter.
Comparison to ABA Model Code
Rule 3.9 and its Comment are adopted from the 2007 ABA Model Code. Modifications
include the addition to the Comment of cross-references to Supreme Court Rule 31, sections 17
and 20, and Rule 2.6, and the new final sentence in the Comment.
Comparison to Current Tennessee Code
Rule 3.9 is Canon 4E, slightly reworded. The Comment is based on the Commentary to
Canon 4E. It has been expanded and now also includes a cross-reference to Supreme Court Rule
31, section 17, permitting various part-time judges to serve as mediators, and section 20,
authorizing trial judges to participate in judicial settlement conferences. Also cross-referenced is
Rule 2.6 and Comments [2], [3] and [4] thereto, which prohibit a judge who participated in a
judicial settlement conference from presiding over the trial.
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RULE 3.10 Practice of Law
A judge shall not practice law. A judge may act pro se and may, without compensation,
give legal advice to and draft or review documents for a member of the judge’s family, but
is prohibited from serving as the family member’s lawyer in any forum. A newly elected or
appointed judge can practice law only in an effort to wind up his or her practice, ceasing to
practice as soon as reasonably possible and in no event longer than 180 days after assuming
office.
COMMENT
[1] A judge may act pro se in all legal matters, including matters involving litigation and
matters involving appearances before or other dealings with governmental bodies. A judge must
not use the prestige of office to advance the judge‟s personal or family interests. See Rule 1.3.
This Rule does not prohibit the practice of law pursuant to military service. See also Tenn. Code
Ann. §23-3-102 (public officers prohibited from practicing law) and §17-1-105 (judges and
chancellors prohibited from practicing law).
[2] The only law practice allowable is that which is necessary to wind up a law practice.
Accordingly, no new matters may be accepted. The 180-day bright line rule in winding up a law
practice does not prohibit the judge from receiving fees after this deadline for services performed
prior to the deadline. See State v. Lipford, 67 S.W.3d 79 (Tenn. Crim. App. 2001).
Comparison to ABA Model Code
Rule 3.10 is adopted from the 2007 ABA Model Code, but a sentence has been added to
reflect Tennessee‟s provision that a new judge has 180 days to wind up his or her practice.
Comment [1] is adopted, but expanded to permit the practice of law by judges in the military and
to cross-reference related statutes. Comment [2] is new and explains the 180 day wind up rule
for new judges, cross-referencing a relevant case.
Comparison to Current Tennessee Code
Rule 3.10 is essentially Canon 4G, but with an addition. The provision in the
Commentary to 4G prohibiting a judge from acting “as an advocate or negotiator for a member
of the judge‟s family” has been reworded to make it more narrow and has been moved to the
black letter law. Comment [1] is a revised version of the Commentary to Canon 4G, but now
also clarifies that judges in the military may practice law.
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RULE 3.11 Financial, Business, or Remunerative Activities
(A) A judge may hold and manage investments of the judge and members of the judge’s
family.
(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or
employee of any business entity except that a judge may manage or participate in:
(1) a business closely held by the judge or members of the judge’s family; or
(2) a business entity primarily engaged in investment of the financial resources
of the judge or members of the judge’s family.
(C) A judge shall not engage in financial activities permitted under paragraphs (A) and
(B) if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business
relationships with lawyers or other persons likely to come before the court on which the
judge serves; or
(4) result in violation of other provisions of this Code.
COMMENT
[1] Judges are generally permitted to engage in financial activities, including managing real
estate and other investments for themselves or for members of their families. Participation in
these activities, like participation in other personal or extrajudicial activities, is subject to the
requirements of this Code. For example, it would be improper for a judge to spend so much time
on business activities that it interferes with the performance of judicial duties. See Rule 2.1.
Similarly, it would be improper for a judge to use his or her official title or appear in judicial
robes in business advertising, or to conduct his or her business or financial affairs in such a way
that disqualification is frequently required. See Rules 1.3 and 2.11.
[2] As soon as practicable without serious financial detriment, the judge must divest himself
or herself of investments and other financial interests that might require frequent disqualification
or otherwise violate this Rule. See Application VI.
Comparison to ABA Model Code
Rule 3.11 is adopted from the 2007 ABA Model Code without modification. Comment
[1] is adopted but clarified to include personal as well as extrajudicial activities, just as in Rule
3.1. Comment [2] is adopted with a cross-reference to Application VI, which addresses the time
at which this code becomes applicable to a judge.
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Comparison to Current Tennessee Code
Rule 3.11(A) is derived from Canon 4D(2), excluding the last two clauses. Rule 3.11(B)
is essentially the same as Canon 4D(3). Rule 3.11(C) combines some new provisions with
elements of Canon 4D(1)(b) and Canon 4D(4). Comment [1] is largely new, but incorporates
several aspects of the Commentary to Canon 4D. Comment [2] is derived from the black letter
text of Canon 4D(4), with the addition of the cross-reference to Application VI.
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RULE 3.12 Compensation for Extrajudicial Activities
Unless prohibited by law, a judge may accept reasonable compensation for personal or
extrajudicial activities permitted by this Code or other law unless such acceptance would
appear to a reasonable person to undermine the judge’s independence, integrity, or
impartiality.
COMMENT
[1] A judge may be permitted to accept honoraria, stipends, fees, wages, salaries, royalties,
or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided
the compensation is reasonable and commensurate with the task performed. The judge should be
mindful, however, that judicial duties must take precedence over other activities. See Rule 2.1.
Other law may prohibit the accepting of such compensation. See, e.g., Tenn. Code Ann. §2-10-
116.
[2] Compensation derived from extrajudicial activities may be subject to public reporting.
See Rule 3.15.
Comparison to ABA Model Code
Rule 3.12 and its Comments are adopted from the 2007 ABA Model Code with slight
modification. The changes recognize that there are circumstances in which judges are prohibited
by law from accepting compensation for personal or extrajudicial activities.
Comparison to Current Tennessee Code
Rule 3.12 encompasses the provisions of Canon 4H(1) that address compensation.
Reimbursement of expenses is now addressed in Rule 3.14. Consistent with the remainder of the
proposed code, the standard of “appearance of impropriety” has been replaced by concerns of
undermining “the judge‟s independence, integrity, or impartiality.” The additions to Comment
[1] give notice that other provisions in Tennessee law should also be considered.
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RULE 3.13 Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other
Things of Value
(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value,
if acceptance is prohibited by law or would appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality.
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the
following without publicly reporting such acceptance:
(1) items with little intrinsic value, such as plaques, certificates, trophies, and
greeting cards;
(2) gifts, loans, bequests, benefits, or other things of value from friends, relatives,
or other persons, including lawyers, whose appearance or interest in a proceeding pending
or impending before the judge would in any event require disqualification of the judge
under Rule 2.11;
(3) ordinary social hospitality;
(4) commercial or financial opportunities and benefits, including special pricing
and discounts, and loans from lending institutions in their regular course of business, if the
same opportunities and benefits or loans are made available on the same terms to similarly
situated persons who are not judges;
(5) rewards and prizes given to competitors or participants in random drawings,
contests, or other events that are open to persons who are not judges;
(6) scholarships, fellowships, and similar benefits or awards, if they are available
to similarly situated persons who are not judges, based upon the same terms and criteria;
(7) books, magazines, journals, audiovisual materials, and other resource
materials supplied by publishers on a complimentary basis for official use;
(8) gifts, awards, or benefits associated with the business, profession, or other
separate activity of a spouse, a domestic partner, or other family member of a judge
residing in the judge’s household, but that incidentally benefit the judge;
(9) gifts incident to a public testimonial; or
(10) invitations to the judge and the judge’s spouse, domestic partner, or guest to
attend without charge:
(a) an event associated with a bar-related function or other activity
relating to the law, the legal system, or the administration of justice; or
(b) an event associated with any of the judge’s educational, religious,
charitable, fraternal or civic activities permitted by this Code, if the same
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invitation is offered to nonjudges who are engaged in similar ways in the
activity, as is the judge.
(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept gifts,
loans, bequests, benefits, or other things of value. A judge must report such acceptance, to
the extent required by Rule 3.15, if the source is a party or other person, including a
lawyer, who has come or is likely to come before the judge, or whose interests have come or
are likely to come before the judge.
COMMENT
[1] Whenever a judge accepts a gift or other thing of value without paying fair market value,
there is a risk that the benefit might be viewed as intended to influence the judge‟s decision in a
case. Rule 3.13 imposes restrictions upon the acceptance of such benefits, according to the
magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the
acceptance would appear to undermine the judge‟s independence, integrity, or impartiality is
low, and explicitly provides that such items need not be publicly reported. As the value of the
benefit or the likelihood that the source of the benefit will appear before the judge increases, the
judge is either prohibited under paragraph (A) from accepting the gift, or required under
paragraph (C) to publicly report it. A gift to a judge, other than ordinary social hospitality, from
a party or other person, including a lawyer, who has come or is likely to come before the judge,
or whose interests have come or are likely to come before the judge, may be prohibited if
acceptance would appear to a reasonable person to undermine the judge‟s independence,
integrity, or impartiality.
[2] Gift-giving between friends and relatives is a common occurrence, and ordinarily does
not create an appearance of impropriety or cause reasonable persons to believe that the judge‟s
independence, integrity, or impartiality has been compromised. In addition, when the appearance
of friends or relatives in a case would require the judge‟s disqualification under Rule 2.11, there
would be no opportunity for a gift to influence the judge‟s decision making. Paragraph (B)(2)
places no restrictions upon the ability of a judge to accept gifts or other things of value from
friends or relatives under these circumstances, and does not require public reporting.
[3] Businesses and financial institutions frequently make available special pricing, discounts,
and other benefits, either in connection with a temporary promotion or for preferred customers,
based upon longevity of the relationship, volume of business transacted, and other factors. A
judge may freely accept such benefits if they are available to the general public or if the judge
qualifies for the special price or discount according to the same criteria as are applied to persons
who are not judges. As an example, loans provided at generally prevailing interest rates are not
gifts, but a judge could not accept a loan from a financial institution at below-market interest
rates unless the same rate was being made available to the general public for a certain period of
time or only to borrowers with specified qualifications that the judge also possesses.
[4] Rule 3.13 applies only to acceptance of gifts or other things of value by a judge.
Nonetheless, if a gift or other benefit is given to the judge‟s spouse, domestic partner, or member
of the judge‟s family residing in the judge‟s household, it may be viewed as an attempt to evade
Rule 3.13 and influence the judge indirectly. Where the gift or benefit is being made primarily to
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such other persons, and the judge is merely an incidental beneficiary, this concern is reduced. A
judge should, however, remind family and household members of the restrictions imposed upon
judges, and urge them to take these restrictions into account when making decisions about
accepting such gifts or benefits.
[5] Rule 3.13 does not apply to contributions to a judge‟s campaign for judicial office. Such
contributions are governed by other Rules of this Code, including Rules 4.3 and 4.4.
[6] A judge shall only accept a gift incident to a public testimonial if the judge‟s receipt of
the public testimonial is a permitted activity under Rule 3.7(A)(4) and Comment [1] thereto.
Comparison to ABA Model Code
Rule 3.13, subparagraphs (A) and (B)(1) through (B)(8) and all Comments are adopted
from the 2007 ABA Model Code without modification. Subparagraphs (C)(1) and C(2) have
been adopted as subparagraphs B(9) and B(10), thus obviating the reporting requirement. A new
sentence is added to the end of Comment [1] to emphasize that gifts listed in Rule 3.13(B) as
being permitted may indeed be prohibited under the limitations of Rule 3.13(A). Comment [6] is
new.
Comparison to Current Tennessee Code
Rule 3.13 is derived from Canon 4D(5). Rule 3.13 (A) states the prohibition against
accepting gifts and various other things of value if the acceptance thereof would appear to a
reasonable person to undermine the judge‟s the judge‟s independence, integrity, or impartiality.
Rule 3.13(B) lists more clearly those items than can be accepted without publicly
reporting the receipt thereof, modified from Canon 4D(5). Unlike the ABA Model Code, the
proposed new code retains the provisions of Canon 4D(5)(a) regarding gifts incident to a public
testimonial without requiring reporting of the receipt thereof. The restriction in the Commentary
to Canon 4D(5)(a), that the donor organization not be an organization whose members comprise
or frequently represent the same side in litigation, is incorporated by the cross-reference to Rule
3.7(A)(4) and Comment [1] thereto.
Rule 3.13(B) also retains the provisions of Canon 4D(5)(a) regarding gifts in the form of
invitations for the judge and a guest to attend, without charge, law-related functions without
being required to report the receipt thereof. Rule 3.13(B)(10)(b) is new and permits, without
requiring reporting the receipt thereof, invitations for the judge and a guest to attend events
associated with the judge‟s educational, religious, charitable, fraternal or civic activities if the
same invitation is offered to similarly situated nonjudges.
Rule 3.13(C) relaxes the requirements of Canon 4D(5), which absolutely prohibited the
acceptance of gifts from lawyers or their clients who are likely to come before the court. Rule
3.13 allows the acceptance of such items, provided that they are reported pursuant to Rule 3.15
and that they are not prohibited under Rule 3.13(A) or elsewhere.
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RULE 3.14 Reimbursement of Expenses and Waivers of Fees or Charges
(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law, a judge may
accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or
other incidental expenses, or a waiver or partial waiver of fees or charges for registration,
tuition, and similar items, from sources other than the judge’s employing entity, if the
expenses or charges are associated with the judge’s participation in extrajudicial activities
permitted by this Code.
(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental
expenses shall be limited to the actual costs reasonably incurred by the judge and, when
appropriate to the occasion, by the judge’s spouse, domestic partner, or guest.
(C) [Intentionally omitted]
COMMENT
[1] Educational, civic, religious, fraternal, and charitable organizations often sponsor
meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are
encouraged to attend educational programs, as both teachers and participants, in law-related and
academic disciplines, in furtherance of their duty to remain competent in the law. Participation in
a variety of other extrajudicial activity is also permitted and encouraged by this Code.
[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or
other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement
for necessary travel, food, lodging, or other incidental expenses. A judge‟s decision whether to
accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection
with these or other extrajudicial activities must be based upon an assessment of all the
circumstances. To comply with Rules 3.1 and 3.13(A), the judge must undertake a reasonable
inquiry to obtain the information necessary to make an informed judgment about whether
acceptance would be consistent with the requirements of this Code.
[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers
would not appear to a reasonable person to undermine the judge‟s independence, integrity, or
impartiality. The factors that a judge should consider when deciding whether to accept
reimbursement or a fee waiver for attendance at a particular activity include:
(1) whether the sponsor is an accredited educational institution or bar association
rather than a trade association or a for-profit entity;
(2) whether the funding comes largely from numerous contributors rather than from a
single entity and is earmarked for programs with specific content;
(3) whether the content is related or unrelated to the subject matter of litigation
pending or impending before the judge, or to matters that are likely to come before the judge;
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(4) whether the activity is primarily educational rather than recreational, and whether
the costs of the event are reasonable and comparable to those associated with similar events
sponsored by the judiciary, bar associations, or similar groups;
(5) whether information concerning the activity and its funding sources is available
upon inquiry;
(6) whether the sponsor or source of funding is generally associated with particular
parties or interests currently appearing or likely to appear in the judge‟s court, thus possibly
requiring disqualification of the judge under Rule 2.11;
(7) whether differing viewpoints are presented; and
(8) whether a broad range of judicial and nonjudicial participants are invited, whether
a large number of participants are invited, and whether the program is designed specifically for
judges.
Comparison to ABA Model Code
Rule 3.14(A) and (B) and Comments [1] and [3] are adopted from the 2007 ABA Model
Code without modification. Rule 3.14(C), which requires a judge to report the waiver or partial
waiver of expenses for a judge or his guest, is omitted. It is seen to be unworkable, as well as
unnecessary in light of the other safeguards contained in the Rule. Comment [2] is modified to
cross-reference Rules 3.1(A) and 3.13(A).
Comparison to Current Tennessee Code
Rule 3.14 is derived from Canon 4(H)(1) and permits a judge to receive reasonable
reimbursement for or waiver of fees and expenses for the judge and, when appropriate, for the
judge‟s guest. Because only reasonable reimbursements and waiver are permitted, no reporting
is required. All Comments are new.
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RULE 3.15 Reporting Requirements
(A) A judge shall publicly report the amount or value of:
(1) compensation received for extrajudicial activities as permitted by Rule 3.12;
and
(2) gifts and other things of value as permitted by Rule 3.13(C), unless the value
of such items, alone or in the aggregate with other items received from the same source in
the same calendar year, does not exceed $250.
(3) [Intentionally omitted]
(B) When public reporting is required by paragraph (A), a judge shall report the date,
place, and nature of the activity for which the judge received any compensation and the
description of any gift, loan, bequest, benefit, or other thing of value accepted.
(C) The public report required by paragraph (A) shall be made at least annually.
(D) Reports made in compliance with this Rule shall be filed as public records in the
office of the clerk of the court on which the judge serves and in the Administrative Office of
the Courts and, when technically feasible, posted by the court or office personnel on the
court’s website and on the website of the Administrative Office of the Courts.
COMMENT
[1] Judges should be mindful that other reporting requirements may be applicable, such as
those required with regard to election campaigns. See Comment [8] to Rule 4.2.
Comparison to ABA Model Code
Rule 3.15 is adopted from the 2007 ABA Model Code with several changes. The annual
threshold of Rule 3.15(A)(2) is set at $250. In order to be consistent with proposed Rule 3.14,
the provisions related to reporting of waivers and reimbursements of expenses is omitted from
subparagraphs (A)(3), (B) and (C). The places in which reports are to be filed have been
clarified. A Comment has been added to remind judges that other reporting requirements exist as
well.
Comparison to Current Tennessee Code
Rule 3.15 is based upon the public reporting requirement contained in Canon 4H(2)
regarding compensation for extrajudicial activities and those of Canon 4D(5) regarding the
public reporting of the acceptance of permissible gifts and other things of value, but the
minimum value that triggers the reporting requirement has been raised from $150 to $250.
Subparagraphs (B), (C), and (D) of Rule 3.15 clarify the mechanism for compliance with the
reporting requirements.
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CANON 4
A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN
POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE
INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY.
Comparison to ABA Model Code
Canon 4 is adopted from the 2007 ABA Model Code without modification.
Comparison to Current Tennessee Code
Canon 4 and its Rules address the political and campaign activities of judges and judicial
candidates and is derived from Canon 5 of the current Tennessee Code, although it has been
significantly restructured and revised. It now applies specifically to campaign activity. The
phrase “inappropriate political activities” is replaced with “activity that is inconsistent with the
independence, integrity, or impartiality of the judiciary.”
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RULE 4.1 Political and Campaign Activities of Judges and Judicial Candidates in
General
(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial
candidate shall not:
(1) act as a leader in, or hold an office in, a political organization;
(2) make speeches on behalf of a political organization;
(3) [intentionally omitted];
(4) solicit funds for or pay an assessment to a political organization or candidate
for public office;
(5) [intentionally omitted];
(6) [intentionally omitted];
(7) [intentionally omitted];
(8) personally solicit or accept campaign contributions other than through a
campaign committee authorized by Rule 4.4;
(9) use or permit the use of campaign contributions for the private benefit of the
judge, the candidate, or others;
(10) use court staff, facilities, or other court resources in a campaign for judicial
office;
(11) knowingly, or with reckless disregard for the truth, make any false or
misleading statement;
(12) make any statement that would reasonably be expected to affect the outcome
or impair the fairness of a matter pending or impending in any court; or
(13) in connection with cases, controversies, or issues that are likely to come
before the court, make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.
(B) A judge or judicial candidate shall take reasonable measures to ensure that other
persons do not undertake, on behalf of the judge or judicial candidate, any activities
prohibited under paragraph (A).
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COMMENT
GENERAL CONSIDERATIONS
[1] Even when subject to public election, a judge plays a role different from that of a
legislator or executive branch official. Rather than making decisions based upon the expressed
views or preferences of the electorate, a judge makes decisions based upon the law and the facts
of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to
the greatest extent possible, be free and appear to be free from political influence and political
pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign
activities of all judges and judicial candidates, taking into account the various methods of
selecting judges.
[2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her
conduct.
PARTICIPATION IN POLITICAL ACTIVITIES
[3] Public confidence in the independence and impartiality of the judiciary is eroded if
judges or judicial candidates are perceived to be subject to political influence. Although judges
and judicial candidates may register to vote as members of a political party, they are prohibited
by paragraph (A)(1) from assuming leadership roles in political organizations.
[3A] Rule 4.1(A)(10) prohibits a judge from using court staff in a campaign for judicial office.
The rule does not preclude voluntary involvement of court staff in campaign activities during
non-working hours.
[4] [intentionally omitted]
[5] [intentionally omitted]
[6] [intentionally omitted]
STATEMENTS AND COMMENTS MADE DURING A CAMPAIGN FOR JUDICIAL OFFICE
[7] Judicial candidates must be scrupulously fair and accurate in all statements made by them
and by their campaign committees. Paragraph (A)(11) obligates candidates and their committees
to refrain from making statements that are false or misleading, or that omit facts necessary to
make the communication considered as a whole not materially misleading.
[8] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations
made by opposing candidates, third parties, or the media. For example, false or misleading
statements might be made regarding the identity, present position, experience, qualifications, or
judicial rulings of a candidate. In other situations, false or misleading allegations may be made
that bear upon a candidate‟s integrity or fitness for judicial office. As long as the candidate does
not violate paragraphs (A)(11), (A)(12), or (A)(13), the candidate may make a factually accurate
public response. In addition, when an independent third party has made unwarranted attacks on a
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candidate‟s opponent, the candidate may disavow the attacks, and request the third party to cease
and desist.
[9] Subject to paragraph (A)(12), a judicial candidate is permitted to respond directly to
false, misleading, or unfair allegations made against him or her during a campaign, although it is
preferable for someone else to respond if the allegations relate to a pending case.
[10] Paragraph (A)(12) prohibits judicial candidates from making comments that might impair
the fairness of pending or impending judicial proceedings. This provision does not restrict
arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings,
statements, or instructions by a judge that may appropriately affect the outcome of a matter.
PLEDGES, PROMISES, OR COMMITMENTS INCONSISTENT WITH IMPARTIAL PERFORMANCE OF THE
ADJUDICATIVE DUTIES OF JUDICIAL OFFICE
[11] The role of a judge is different from that of a legislator or executive branch official, even
when the judge is subject to public election. Campaigns for judicial office must be conducted
differently from campaigns for other offices. The narrowly drafted restrictions upon political and
campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct
campaigns that provide voters with sufficient information to permit them to distinguish between
candidates and make informed electoral choices.
[12] Paragraph (A)(13) makes applicable to both judges and judicial candidates the
prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments
that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
[13] The making of a pledge, promise, or commitment is not dependent upon, or limited to,
the use of any specific words or phrases; instead, the totality of the statement must be examined
to determine if a reasonable person would believe that the candidate for judicial office has
specifically undertaken to reach a particular result. Pledges, promises, or commitments must be
contrasted with statements or announcements of personal views on legal, political, or other
issues, which are not prohibited. When making such statements, a judge should acknowledge the
overarching judicial obligation to apply and uphold the law, without regard to his or her personal
views.
[14] A judicial candidate may make campaign promises related to judicial organization,
administration, and court management, such as a promise to dispose of a backlog of cases, start
court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also
pledge to take action outside the courtroom, such as working toward an improved jury selection
system, or advocating for more funds to improve the physical plant and amenities of the
courthouse.
[15] Judicial candidates may receive questionnaires or requests for interviews from the media
and from issue advocacy or other community organizations that seek to learn their views on
disputed or controversial legal or political issues. Paragraph (A)(13) does not specifically address
judicial responses to such inquiries. Depending upon the wording and format of such
questionnaires, candidates‟ responses might be viewed as pledges, promises, or commitments to
perform the adjudicative duties of office other than in an impartial way. To avoid violating
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paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also
give assurances that they will keep an open mind and will carry out their adjudicative duties
faithfully and impartially if elected. Candidates who do not respond may state their reasons for
not responding, such as the danger that answering might be perceived by a reasonable person as
undermining a successful candidate‟s independence or impartiality, or that it might lead to
frequent disqualification. See Rule 2.11.
Comparison to ABA Model Code
Rule 4.1 and its Comments are adopted from the 2007 ABA Model Code with substantial
modification. Rules 4.1(A)(1), (2), (8), (9), (11), (12) and (13) and Rule 4.1(B) are adopted
without modification, as are Comments [1] through [3] and [7] through [15]. Intentionally
omitted are Rules 4.1(A)(3), (5), (6), and (7) and Comments [4] through [6]. From Rule
4.1(A)(4) the prohibition against making a contribution has been deleted. Rule 4.1(A)(10)
prohibits using court staff, facilities or resources in any political campaign, not just a judicial
campaign. Comment [3A] is new.
Comparison to Current Tennessee Code
Rule 4.1 applies to all judges, whether or not they are judicial candidates, and to all
judicial candidates. It is based on various provisions in Canons 5A and 5C. Rules 4.1(A)(1), (2),
and (4) are Canon 5A(1)(a), (c) and (d), respectively. The provisions of Canons 5A(1)(b) and (e)
have been deleted. Rules 4.1(A)(8) and (9) come from Canon 5C(2). Rule 4.1(A)(10) is new.
Rule 4.1(a)(11) is based in part on Canon 5A(3)(d)(ii). Rule 4.1(A)(12) is similar to Canon
3B(9), although it is new to the Canon on political and campaign activity. Rule 4.1(A)(13) is
essentially Canon 5A(3)(d)(i). Rule 4.1(B) combines and simplifies Canons 5A(3)(a) and
5A(3)(b).
All of the Comments are new, but some include familiar concepts. For example,
Comment [2] is Canon 5E, which has been removed from black letter law. Comment [7] is new
but is based on a principle taken from Canon 5A(3)(d)(ii). Comments [8] and [9] are new, but are
based on Canon 5A(3)(e), which has been removed from black letter law. Comment [10] is
derived from portions of Canon 3B(9) and the Commentary thereto. Comment [14] is similar to
the last paragraph in the Commentary to Canon 5A(3)(d). Comment [15] is similar to a portion
of the Commentary to Canon 5A(3)(d).
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RULE 4.2 Political and Campaign Activities of Judges and Judicial Candidates in
Public Elections
(A) A judge or judicial candidate in a partisan, nonpartisan, or retention public election
shall:
(1) act at all times in a manner consistent with the independence, integrity, and
impartiality of the judiciary;
(2) comply with all applicable election, election campaign, and election campaign
fund-raising laws and regulations of this jurisdiction;
(3) review and approve the content of all campaign statements and materials
produced by the candidate or his or her campaign committee, as authorized by Rule 4.4,
before their dissemination; and
(4) take reasonable measures to ensure that other persons do not undertake on
behalf of the candidate activities, other than those described in Rule 4.4, that the candidate
is prohibited from doing by Rule 4.1.
(B) A candidate for elective judicial office may, unless prohibited by law, and not earlier
than 180 days before the first applicable primary election, caucus, or general or retention
election, establish a campaign committee pursuant to the provisions of Rule 4.4.
(2) – (6) [Intentionally omitted]
(C) [Intentionally omitted]
COMMENT
[1] [Intentionally omitted]
[1A] It is possible for some judicial offices to be subject to a primary and general election. It is
possible for some counties to have a partisan primary for a particular office whereas another
county might only have a non-partisan general election for the same office. It is also conceivable
that the decision as to whether or not to hold a primary might not be made until within the 180-
day period before the primary. Therefore, for the sake of uniformity, the 180-day period for all
judicial offices that can possibly be subject to a primary election, whether or not there actually is
a primary, shall begin to run from the date the primary would be held.
[2] [Intentionally omitted]
[3] In partisan public elections for judicial office, a candidate may be nominated by,
affiliated with, or otherwise publicly identified or associated with a political organization,
including a political party. This relationship may be maintained throughout the period of the
public campaign, and may include use of political party or similar designations on campaign
literature and on the ballot.
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[4] [Intentionally omitted]
[5] Judicial candidates are permitted to attend or purchase tickets for dinners and other
events sponsored by political organizations.
[6] [Intentionally omitted]
[6A] While judges and judicial candidates are not prohibited from endorsing or opposing other
candidates for public office, such activity may be imprudent, and they should be mindful that
such conduct could result in disqualification of the judge in subsequent matters.
[7] [Intentionally omitted]
[8] Compliance with all applicable election, election campaign, and election campaign fund-
raising laws and regulations of this jurisdiction includes, but is not limited to, the provisions of
Tennessee Code Annotated sections 2-10-101 et seq., the Campaign Financial Disclosure Act,
and Tennessee Code Annotated sections 2-10-301 et seq., the Campaign Contribution Limits
Act.
Comparison to ABA Model Code
Rule 4.2 and its Comments are adopted from the 2007 ABA Model Code with several
changes. The Rule specifically applies to judges as well as judicial candidates in recognition of
the fact that these requirements should apply to a sitting judge who plans to run, but has not yet
initiated the process. Rule 4.2(B)(1) is modified to limit establishment of a campaign committee
to 180 days prior to the first applicable primary election. Rules 4.2(B)(2) through 4.2(B)(6) and
4.2(C) are deleted, as are Comments [1], [2], [4], [6] and [7]. Comments [1A], [6A] and [8] are
new.
Comparison to Current Tennessee Code
Rule 4.2 applies to judges and judicial candidates running in partisan, non-partisan, and
retention elections. Rule 4.2(A) lists mandatory obligations of a candidate. Rule 4.2(A)(1) and
(A)(4) are based on provisions contained in Canon 5A(3). Subparagraphs (A)(2) and (A)(3) are
new. 4.2(B) addresses the time at which a candidate for elective judicial office may establish a
campaign committee.
The Comments are new. Comment [1A] clarifies the date from which the 180 day period
of Rule 4.2(B) is calculated and is based on the Commentary to Canon 5C(2). Comment [6A]
cautions that endorsement of other political candidates, while not prohibited, can result in
disqualification in subsequent matters that come before the judge. New Comment [8] cross-
references Tennessee election law.
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RULE 4.3 Activities of Candidates for Appointive Judicial Office
A candidate for appointment to judicial office may:
(A) communicate with the appointing or confirming authority, including any selection,
screening, or nominating commission or similar agency; and
(B) seek endorsements for the appointment from any person or organization.
COMMENT
[1] When seeking support or endorsement, or when communicating directly with an
appointing or confirming authority, a candidate for appointive judicial office must not make any
pledges, promises, or commitments that are inconsistent with the impartial performance of the
adjudicative duties of the office. See Rule 4.1(A)(13).
Comparison to ABA Model Code
Rule 4.3 and its Comment are adopted from the 2007 ABA Model Code without
modification, except for the deletion of the phrase “other than a partisan political organization”
from the end of Rule 4.3(B)
Comparison to Current Tennessee Code
Rule 4.3 addresses candidates for appointive judicial office. Rule 4.3(A) is based on
Canon 5B(2)(a)(i), but is slightly expanded. Rule 4.3(B) is based on Canon 5B(2)(a)(ii).
Comment [1] is new.
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RULE 4.4 Campaign Committees
(A) A judicial candidate subject to public election may establish a campaign committee
to manage and conduct a campaign for the candidate, subject to the provisions of this
Code. The candidate is responsible for ensuring that his or her campaign committee
complies with applicable provisions of this Code and other applicable law.
(B) A judicial candidate subject to public election shall direct his or her campaign
committee:
(1) to solicit and accept only such campaign contributions allowable by law.
(2) not to solicit or accept contributions for a candidate’s current campaign
more than one hundred eighty (180) days before an election (see Rule 4.2 Comment [1] as
to the calculation of this time period), nor more than ninety (90) days after the last election
in which the candidate participates; and
(3) to comply with all applicable requirements for disclosure and divestiture of
campaign contributions as required by law. Tennessee law requires, for example, that a
judicial candidate personally file campaign finance reports
COMMENT
[1] Judges and judicial candidates are prohibited from personally soliciting campaign
contributions or personally accepting campaign contributions. See Rule 4.1(A)(8).
[2] Campaign committees may solicit and accept campaign contributions, manage the
expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible for
compliance with the requirements of election law and other applicable law, and for the activities
of their campaign committees. Tennessee law requires, for example, that a judicial candidate file
and swear or affirm to the truth of contents of campaign disclosure statements. Required
information includes the identity of contributors who contributed more than one hundred dollars,
as well as the amounts of their contributions. See, e.g., Tenn. Code Ann. §2-10-105.
[3] At the start of a campaign, the candidate must instruct the campaign committee to solicit
or accept only such contributions as are allowable by law. The campaign committee may receive
a contribution from a lawyer not to exceed the amount authorized by law. More specifically,
Tennessee Code Annotated sections 2-10-301 et seq. set the campaign contribution limits
applicable to judicial candidates. The candidate should instruct the campaign committee to be
cautious in connection with contributions from parties with pending litigation or those in
managerial positions with parties with pending litigation, assuming the committee is aware that
the contribution is from such a person. Such contributions could create grounds for
disqualification if the candidate is elected to judicial office. See Rule 2.11. There is no
requirement that the judicial candidate advise the committee of pending litigation.
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Comparison to ABA Model Code
Rule 4.4(A) is adopted from the 2007 ABA Model Code without modification. Rule
4.4(B) and the Comments are modified to correlate to the requirements of law, including
Tennessee election law.
Comparison to Current Tennessee Code
Rule 4.4(A) is based on a portion of Canon 5C(2) and the Commentary thereto. It
contains an explicit requirement that the candidate is responsible for ensuring that his or her
campaign committee complies with this Code and the law. Rather than adopting the restrictions
in the Model Rule regarding the limits on campaign contributions or the authorities to whom
contributions must be reported, Rules 4.4(B)(1) and (B)(3) generally make reference to the
applicable provisions of law. This is consistent with current Tennessee Code provisions in
Canons 5C(2) and (3). Rule 4.4(B)(2) specifies the window of time in which campaign
contributions may be solicited and accepted, as is currently provided in Canon 5C(2) and the
Commentary thereto.
Comment [1] is based in part on the Commentary following Canon 5C(2). Comment [2]
contains aspects from the second sentence of Canon 5C(2), but also cross-references Tennessee
law. Comment [3] is substantially new.
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RULE 4.5 Activities of Judges Who Become Candidates for Nonjudicial Office
(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign
from judicial office, unless permitted by law to continue to hold judicial office.
(B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not
required to resign from judicial office, provided that the judge complies with the other
provisions of this Code.
COMMENT
[1] In campaigns for nonjudicial elective public office, candidates may make pledges,
promises, or commitments related to positions they would take and ways they would act if
elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is
inconsistent with the role of a judge, who must remain fair and impartial to all who come before
him or her. The potential for misuse of the judicial office, and the political promises that the
judge would be compelled to make in the course of campaigning for nonjudicial elective office,
together dictate that a judge who wishes to run for such an office must resign upon becoming a
candidate.
[2] The “resign to run” rule set forth in paragraph (A) ensures that a judge cannot use the
judicial office to promote his or her candidacy, and prevents post-campaign retaliation from the
judge in the event the judge is defeated in the election. When a judge is seeking appointive
nonjudicial office, however, the dangers are not sufficient to warrant imposing the “resign to
run” rule.
Comparison to ABA Model Code
Rule 4.5 and its Comments are adopted from the 2007 ABA Model Code without
modification.
Comparison to Current Tennessee Code
Rule 4.5 addresses judges who become candidates for nonjudicial office. Rule 4.5(A) is
the “resign-to-run rule” based on Canon 5A(2). Rule 4.5(B) is new, but is implicit in and derived
from Canon 5A(2). The Comments are new.